This article is written by Preetish Agrawal, pursuing a  Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.

Introduction

It was Friedrich Nietzsche who had famously said, “Everyone who enjoys thinks that the principal thing to the tree is the fruit, but in point of fact, the principal thing to it is the seed. Herein lies the difference between them that create and those that enjoy.” [Seed Quotes]

India is a land of farmers, as the majority of the population in the country sustains on farming as an occupation. A seed is the fundamental unit of plant life, and this natural law has guided the occupation of farming for several decades. The farmers in India have sown seeds, harvested crops, and saved part of those harvest seeds for future use or trading with their neighbours. With the development in science and the coming of Genetically Modified (“GM”) plants, the productivity and quality of agricultural production has increased tremendously. This development, despite all its benefits, has drastically changed the legal framework of cultivation; by making seed harvesting for patented seeds an intellectual property violation. Patent laws have made it possible for a few people to have exclusive rights on some seeds and plant lives, and have raised the question as to whether the living organisms that have been genetically altered would qualify for patenting or not? If the patenting of plants is allowed in India, it can be disastrous for the farmers as they would have to pay heavy royalties on their farming produce.

The Indian legal position on this matter is extremely ambiguous and depends highly on the interpretation of the Supreme Court. While Section 3 of the Patents Act [1970] does not intend to allow patenting of the plants, a few loopholes in its interpretation has allowed some companies to get patents on the method of producing these plants. In an attempt to address this ambiguity, this article would explore the realm of patentability of plants and seeds in India. It would look at the international mandate by the World Trade Organization (”WTO”), the Indian law’s position, and the consequences of the same.

The World Trade Organization and the TRIPS Agreement

On 1st January 1995, India became a member of the WTO. This membership made it important for India to comply with the trade related aspects of the Intellectual Property Systems (“TRIPS”) agreement [here]. Part 2, Section 5 of the agreement deals with patents. As per Article 27(1) of the same, the member countries are mandated to grant product and process patents for all the inventions, if they fulfil the patentability criteria. However, Article 27(2) allows for countries to exclude those inventions, whose commercial exploitation would be dangerous to public order and morality, including plant life.

Most importantly, Article 27(3)(b) of the agreement allows members countries to exclude from patentability, “plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes” [TRIPS]. However, the agreement does mandate for the member countries to protect the plant varieties by either giving out patents, creating a sui generis system, or a combination of both. These are the various provisions that India had to abide by in the context of the patentability of plants. We would now explore the various amendments made by India to comply with the same.

India’s Position on Plant Patentability

There were several steps taken by the Indian legislature before 2005 to make India TRIPS compliant. This was majorly done in two parts. Firstly, by amending The Patents Act [1970]; and secondly, by passing of sui generis laws like The Plant Variety Protection and Farmers Rights Act (PPVFRA) [2001]. We would look at both of these in greater detail.

The Amendments in the Patents Act [1970]

To make the Indian laws TRIPS compliant, The Patents Act [1970] was amended three times; in 1999, 2002, and 2005. Section 3 of the Patents Act [1970] mentions what would not be counted as an invention within the meaning of the act. Prior to 2002, Section 3(i) of the act included the process of treatment of plants to increase their economic value. However, the amendment in 2002 omitted the word “or plants” from Section 3(i) of the act [here]. Hence, processes on plants that increase their economic value were now patentable under the act. The 2002 amendment had also added section 3(j) in the act. This section states that “plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals” [Section 3(j)].

However, since GM plants could not be technically considered as ‘essentially biological’, this loophole was used to get patents on various GM plants [Tabasum Wani, 2008]. Hence, prior to 2002, there was a clear position that plants cannot be patented under the Indian act, as section 3(i) would not allow the same. However, the amendment in 2002 has made an established position completely ambiguous, as plants are now omitted from Section 3(i); and whether Section 3(j) would include GM seeds is yet to be interpreted. We would look at the problems with seed regulations in greater detail at a later point in the paper.

The Plant Variety Protection and Farmers Rights Act (PPVFRA) [2001]

The PPVFRA [2001] is a sui generis system, that provides exclusive rights to both farmers and commercial plant breeders of the registered variety. It stimulates investment, accelerates agricultural development, and provides an incentive for research and development of various seed varieties; in turn, developing the seed industry. The owner of the protected variety under the PPVFRA has the right to produce, market, sell, distribute, export, and import the registered variety [Lakshmi Kumaran and Sridharan]. The act is India’s attempt to successfully comply with Article 27(3)(b) of the TRIPS agreement [here].

As we now understand the seed regulations in India, we would analyse the problems arising from these regulations.

The Problem with the Indian Seed Regulation

The fundamental problem begins, with the deletion of the word “or plants” from Section 3(i) of the Patents Act [1970]. This deletion implies that the process or method of modification of a plant can now be counted as an invention, and can hence be patented. The inclusion of Section 3(j) in the act is not a solution to the problem, as GM plants are not technically considered as ‘essentially biological’, excluding them from the operation of the section. The amendments in the patent laws have slowly jeopardized the food security in India in four major ways.

First, the laws have allowed agriculture to be monopolized by binding them in patents, and excluding farmers from cultivating them. Second, even if the farmers do wish to cultivate them, they have to pay heavy royalties, which in turn increases the cost of food. Third, GM plants make gene pollution inevitable [Vandana Shiva, 2005]; and fourth, Indian regulations have failed to ensure protection to the farmers in cases of seed failures. For example, the maize seed failure had cost more than 1000 crores to the farmers in 2004, while the failure of BT cotton had cost more than a billion dollars to the Indian farmers annually [Vandana Shiva, 2005]. Hence, whether plants can be patented or not, entirely depends on the interpretation of Section 3(j) of the act by the apex court. This is the Monsanto’s BT gene controversy. Let us look at this controversy in greater detail.

Monsanto’s BT Gene Controversy

After 2001, the GM crops had extremely influenced the cultivation practices in India, and especially the cotton market. The BT cotton (a GM plant) had so grossly overtaken the Indian market, that around 95% of the cotton produced in India was BT cotton [Dycke and Overwalle]. In this type of cotton, a gene from the common soil bacterium ‘Bacillus Thuringiensis’ was infused in the plant, which was toxic for some types of insects, giving the plant pesticidal qualities [Dycke and Overwalle]. Now, as this can be treated as a treatment or method of making the cotton plant more resistant to insects, it can be patented as the word ‘plants’ has been omitted from Section 3(i) of the patents act [1970]. Also, the BT cotton would not fall under the understanding of being ‘essentially biological’, allowing for an argument to be made that it is not protected under Section 3(j) of the act [Tabasum Wani, 2008].

This is the loophole and the line of reasoning that was used by Monsanto to get a patent on its BT gene technology. This was brought before the apex court in the case of Monsanto Technology v. Nuziveedu Seeds [2019]. In this case, the supreme court had an opportunity to interpret Section 3(j) of the Patents Act [1970], and solve this controversy and ambiguity once and for all. However, the apex court took a very ambiguous position by secluding itself from answering whether the BT cotton seed can be patented or not! The Supreme Court had sent the issue back to the trial court, to investigate various aspects of facts and law in detail [Vandana Shiva, 2019]. Till the decision on this is finalized, the Indian legal framework finds itself in ambiguity.

Conclusion

The exact position of the Indian laws regarding the patentability of plant seeds is still ambiguous today. It all depends on the judicial interpretation of various provisions that have been amended in the Indian laws to comply with the TRIPS agreement. However, one thing that isn’t ambiguous, is the hardship that the Indian farmers would face if the patenting of plant seeds is granted in India. The major argument extended towards the support of patentability of plant seeds, is that it would increase the privatization of agricultural research as private companies would be able to secure their research investments by protecting their interests through patents. However, the PPVFRA does fulfil this requirement by protecting the interest of both farmers and commercial plant breeders; making the argument inconsequential.

Humans are not the creator of plant life, and a group of individuals should not have the right to dictate it. The current scenario best describes Mr. Nietzsche’s quote, and the difference between ‘them that create’ and ‘them that enjoy’. If the companies are allowed to patent their fruits, the farmers would one day run out of seeds to sow, resulting in a legal famine; and not a natural one! 

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