Analysis of Delhi High court decision and its long term impact on seed industry is as under-
Intellectual Property Rights (IPR) in the form of Patent and Plant Breeders' Right (PBR) are the most discussed and debatable issues in the present day for the seed industry.
Understanding about Hon’ble Delhi High court judgment pertaining to patenting of Bt. technology is as follows-
PBR is the right of the breeder to enjoy the benefits of his research for a restricted period for his new varieties. The WTO also provides that plant varieties must be protected by patents or by sui generis system such as PPPV& FR Act of India under which a variety must have the novelty, distinctiveness, uniformity and stability.
A patent grants an individual the right to exclude all other people from manufacturing, using, or selling the product on which the patent was granted. A plant patent can be described as a patent on the plant as a whole or feature of a plant, such as a particular plant gene or gene sequences. However, Section 3(j) of Indian Patents Act 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. Thus, both Indian Patents Act and PPV&FR Act are the TRIPS compliant.
The Govt. of India along with several other developing countries of the world have specifically negotiated to insert the article 27(3) in the TRIPS Agreement. The letter of the Govt. of India to the TRIPS is attached which is self-explanatory. This highlights the reasons that our country has chosen not to grant patents for seeds and planting material as such provision can lead to monopolization of food and suppression of farmers rights.
Taking this in to consideration, the two members bench of Hon’ble Delhi High Court pronounced a judgment on 11-04 -2018 interpreting only the law of the land. The essence of the judgement is that the Monsanto has been making false patent claims on seeds and plant varieties under Indian Patents Act to charge high trait value from the farmers. In fact, whatever IPR they have to enjoy should be obtained under PPV&FR Act by making claims for benefit sharing under this Act before the statutory body i.e.the PPV&FR Authority. The PPV&FR Authority through a due process of law in consultation with all the stakeholders will decide the quantum of benefit sharing based on the agronomic value of trait instead of what hitherto is deciding it unilaterally at exorbitant levels, claiming non-existent patent rights, on their own for excessive profits. The issue is not whether they have IPR or not but it is under what Act they have IPR. The misrepresentations of Monsanto about having patent rights on seeds to charge exorbitant trait value have finally been confirmed by the Hon’ble High Court. Further, Under the PPV&FR Act no permission is required from the owner of the variety including transgenic variety for conducting research on that variety for development of new varieties as the researchers rights provide for universal access with an obligation to pay benefit sharing as decided by the PPV&FR Authority. Further, innovations are encouraged under PPV&FR Act to make available superior varieties to the farmers. The GM trait developers can represent for appropriate trait value fixation giving justification on the agronomic value conferred by the GM traits and definitely can secure appropriate and reasonable returns on their investments
Provisions of PPV&FRA -
Under this Act transgenic variety can be a “new variety” and, therefore, registrable 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.
India’s commitment to TRIPs, especially its commitment to enact a sui generis law, the enactment of the Plant variety protection Act and its conscious exclusion of patent protection to matters falling within Section 3 (j) are to be construed as an expressed intention to deny patents to “plants including seeds, varieties” or any part thereof. The “trait” it developed and for which patent was granted, is subsumed by the “variety” culminating in a “seed” and later a “plant”. Undoubtedly, the trait is part of both the variety or the seed, or both and, therefore, excluded. It was therefore, held that Section 26 of the PPV&FR Act read with Rules 41 to 44 of the PPVFR Rules, and should be read concurrently with section 21(2) of the Biodiversity Act, in order to claim benefit sharing for use of the Bt. Trait.
India has a well-balanced legal framework that protects the rights of plant breeders, farmers and biotech companies. The Patents Act permits biotech companies to patent their artificially engineered genes and use them to create transgenic seeds in a laboratory. Biotech companies have the corresponding right to prevent anyone else from producing such transgenic seeds in a laboratory and selling the same. In fact, in the case of Bt cotton, Monsanto did precisely this, when it sold transgenic seeds to Indian seed companies for use as initial varieties for creating new varieties. However, once the transgenic seed is sold by a biotech research company, it 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 PPVFR Act.
This is a landmark judgement for the Indian Seed Industry. This provides for universal access to all the breeders of small, medium or large companies including public sector to develop new plant varieties with any transgenic trait subject to its bio safety approval. The farmer shall have availability of more varieties from a wide range of seed companies. There shall be more competition and fair play in the market.
The innovation in trait development shall also be encouraged through benefit sharing provisions in proportion to the agronomic value a trait can confer to the new varieties. If a trait loses agronomic value, the trait value also shall disappear, this will be fair to the farmers as well.