We bring you a guest post from Mr. R.K. Trivedi, Director (Technical) of National Seed Association of India (NSAI). This post is in response to Prashant’s post on whether Monsanto’s invention can be protected as a plant variety and seek benefit-sharing from Nuziveedu, which was published on the blog last week.
As readers may be aware, Monsanto is locked in what is possibly the biggest patent/technology battle against various seed companies for some years now. The main seed companies at the forefront of this dispute include Nuziveedu, Prabhat Agri Biotech and Pravardhan Seeds etc. All of these seed companies are part of NSAI.
The disputes between Monsanto and NSAI companies also involve issues of plant variety protection, Essential Commodities act, Contract Act, Specific Relief Act, Arbitration Act etc. For our previous posts on various aspects of this controversy and litigation etc., please click here.
National Seed Association of India (NSAI) on Delhi High Court’s Judgment in the Monsanto-Nuziveedu Dispute
R.K. Trivedi
Mr. Prashant Reddy’s post does not give a correct interpretation of the Delhi High Court’s recent decision in the Monsanto-Nuziveedu dispute. If we want to correctly interpret the Delhi High Court’s decision, we have to first understand the provisions of Indian Patents Act, PPV& FR Act and TRIPS Agreement of WTO.
Indian Patents Act, Section 3(j) excludes from patentability “plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals”, in pursuance of Article 27(3)(b) of the TRIPS Agreement.
PPV&FR Act covers transgenic variety as a “new variety”, which is, therefore, eligible for registration under Section 15(1) provided it satisfies the conditions of ―novelty, distinctiveness, uniformity and stability. A breeder under Section 16(1) includes the breeder of such transgenic variety. Under Section 24, varieties, other than essentially derived varieties can be given registration. The facility of benefit sharing then is conferred upon all interested to seek the advantages, upon fee determined in this regard. What is crucial in this enactment is benefit sharing under Section 26. If someone’s variety with a unique trait (like the Bt. Trait) is used to create a new variety, benefit sharing can be claimed from the creator of the new variety under Section 26 of the PPV&FR Act read with Rules 41 to 44 of the PPV&FR Rules. The registration of a plant variety or a transgenic variety under Section 28 of the PPVFR Act confers certain exclusive rights enshrined therein on the breeder. Section 30 of the PPVFR Act provides for “Researcher’s rights” allowing use of any registered variety for developing new varieties. Under section 39, the farmers have the right to save, sow, re-sow, exchange, share and sell the farm saved seeds of any protected variety including a transgenic variety.
The Delhi High Court has critically gone through the above provisions of Indian Patents Act and PPV&FR Act and observed that India has a well-balanced legal framework that protects the rights of plant breeders, farmers and biotech companies.The Court held that Monsanto cannot have patent on transgenic seeds per se. They can have a patent on gene or gene sequences that have been synthesized in the laboratory and under Patents Act they have the right to prevent anyone else from producing such transgenic seeds in a laboratory and selling the same. However, once they sell transgenic seeds to Indian seed companies for use as initial varieties for creating new varieties, they cannot claim patent rights on subsequent seeds produced by farmers and breeders using essentially biological processes. For that, it must rely on the provisions of benefit sharing under the PPV&FR Act.
Further, I would like to correct this notion that our PVP legislation is a copy of UPOV model. The Indian PPV&FR Act is a unique enactment and is not modeled on UPOV as claimed in Mr. Prashant Reddy’s post. Indian Government categorically states to TRIPS that we shall not copy the UPOV model but will adopt a sui generis system having a separate law to fulfill our national requirement by providing farmer’s rights and rewarding farmers for their efforts to conserve crop biodiversity. Some of the differences between the UPOV Convention and the PPVFR Act are as follows-
(i) In PPV&FR Act, the definition of ‘variety’ includes transgenic variety also, whereas, ‘variety’ definition of UPOV does not cover transgenic variety.
(ii) In PPV&FR Act researcher’s right is very comprehensive whereas in UPOV, the researcher’s right is restrictive.
(iii) In PPV&FR Act, there is a provision for Farmer’s Right, Right of Communities, Benefit Sharing, Gene funds etc. However, such provisions do not exist in UPOV.
As can be seen from the above in UPOV, the transgenic plant varieties are not even covered in the definition of the variety. Similarly, the benefit sharing provision is not there in UPOV as per the requirements set out by advanced countries which may not be favorable for recognition and reward of the conservation or breeding activities carried out by the farmers or breeders of the third world. UPOV does not provide farmers’ rights and also does not provide for compensation to farmers on failure of the registered variety to give expected performance under given conditions. Therefore, the Indian PPV&FR Act is a balanced Act and a complete code, protecting the interest of all the stakeholders. One of the unique features of the PPVFR Act is that, it prevents creation of monopoly in agriculture sector. This clarifies that the Govt. of India had consciously chosen not to join UPOV and develop a sui generis legislation in the form of PPV&FR Act to suit Indian national interest.
In view of the above, it is pertinent to note that the Delhi High Court order only captures the legislative intent of the Govt. and the provisions of the Indian Law. The Indian law is balanced and provides incentives for the innovation in the form of trait development to companies like Monsanto and also encourages the breeders to incorporate the new innovations and develop new plant varieties by giving access under the researchers’ rights. The farmers are given protection to save, use all plant varieties including transgenic plant varieties.
In my opinion, Monsanto should be happy as the trait value fixation would now be carried out by a statutory body, PPV&FR Authority whose actions need to be transparent and accountable through judicial review. It is impossible to get a judicial review for actions under the Essential Commodities Act since they have a protection under the public interest.
In view of the above, I am surprised why Monsanto is not welcoming the fair decision of the Hon’ble High Court of Delhi, which will help all other biotech trait developers as well. It is heartening that the breeders of small and medium seed companies along with the breeders of public sector and large seed companies are brought on the same footing by the Court order. This will encourage not only innovation but also competition by bringing more players which will ultimately benefit the farmers. Thus, the judgment takes care of the interest of all stakeholders and thereby benefits the farmers.
Image from here