IPR VIS-A-VIS Agriculture
Intellectual Property Rights (IPR) as a legal fiction of considering an intangible asset as property by the State has originally developed in Europe, USA, Japan etc. Now, India is also on the verge of gaining intellectual sophistication, and this concept of IPR is transitioning into economic and social gains (1). Such intellectual assets have intellectual significance in commerce, as the State in an attempt to promote public welfare grants IPR to the intellectual assets and the assignees get a right to use such technology for a pre-destined time, and in return, the innovator or the contributor has to disclose the details of the technology for the public use. In the present article, the emphasis and focus have primarily concentrated on the seed industry.
In India, there exists a huge need of stabilizing the economic imbalances and food needs due to overpopulation, and India being primarily an agricultural economy requires a huge technological advancement that is when the Intellectual Property rights shower importance in the primary sector of Indian economy. There is no denial to the fact that post-independence, India has successfully become food sufficient, but it has emanated certain inconveniences which include energy crisis, corrosion of soil health, and declining water resources which leads to the need of more innovative approaches to make agriculture more sustainable (2).
Conventionally, the role of IPR was not acknowledged in the agricultural methods, but the recent vogue is towards the development of agricultural technology which has broadened the limited scope of agriculture.
Laws On Agricultural IPR
Indian Patent Act, 1970 and subsequent amendments to it provided patents for agricultural tools and machinery or the processes of development of agricultural chemicals. However, the Act didn’t swathe techniques in agriculture, life forms of other micro-organisms like plants, different breeds of animals, aquatic life or birds as well as products derived from chemical/ biochemical processes, and any process for medicinal, surgical, curative, or any other treatments of animals or plants to render them free of diseases or to increase their economic value (3). Till the beginning of 2005, only method inventions relating to substances prepared by chemical processes were patentable.
Earlier, in India, there was no legislation to protect plant varieties, but it was after the Patent (Amendments) Act, 2005 that inventions related to agrochemicals as products could be patented. The Amendment of 2005 came as a result of TRIPS-WTO agreement, and India being a signatory to it was bound to make a mandatory provision for the protection of plant varieties either by patents or by an effective sui generis system (4).
In India, sui generis system was developed for the protection of plant, where rights of breeders, farmers and village communities were integrated. This system enabled designing of one’s technology as an alternative to the patent technology for protection of plants. As a consequence to this, Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act, 2001 marked its presence in India to protect new plant varieties. India inclines a sui generis method which is non-patent, for the reason that India is primarily an agricultural economy and is currently engulfed by conventional plant breeding (5). India being a signatory to TRIPS is compliant to the principle that seeds and plants cannot be patented (6).
Indian trend towards patenting in agriculture
The recent trend of patenting activity in different fields of agricultural science was studied and the patent search was carried out following the International Patent Classification (IPC) for the period 2007-2012.
Table 1. Trends in patents granted in different areas of agriculture sciences, 2005-06 to 2010-12
|Soil, machinery (A01B)||1||13||4||18|
|Planting, sowing, fertilizing (A01C)||5||26||17||48|
|Harvesting, mowing (A01D)||8||13||6||27|
|Threshing, storing (A01F)||2||14||3||19|
|Horticulture, foresty (A01G)||5||37||14||56|
|Tissue Culture technique (A01H)||2||30||26||58|
|Manufacture of dairy products(A01J)||–||4||4||8|
|Animal husbandry (A01K)||3||34||20||57|
|Shoeing of animals(A01L)||–||4||3||7|
|Catching, trapping of animals (A01M)||8||32||16||56|
|Biocides, pesticides, herbicides, pest repellants, pest attractants, PGRs (A01N)||22||483||177||682|
|Source: IPO database|
Table 1: Recent Trend in Patenting Activity in India and its Implications for Agriculture (7).
BT Cotton Seed Controversy:
In this case, the controversy arose around two IP regimes, The Patents Act and Protection of Plant Varieties and Farmers’ Rights Act (PPVFR Act) (8). In the matter of Monsanto v. Nuziveedu (2017), the Delhi High Court gave a decision against one of the world’s biggest seed industry declaring the BT Cotton seed technology to be unpatentable (9). The dispute arose in the year 2015 initially, and in the initial proceedings of the Delhi Division case, the Court didn’t comment on the patentability of the BT Cotton technology of the Monsanto Company. The matter was brought to the Delhi High Court mainly concerning over the license and royalty of the patented seed technology- Bollard II, which turned into a debate over Patent No. 214436. The patent is titled as “Methods for transforming plants to express Bacillus Thuringiensis Delta-endotoxins”, which is primarily the infusion of Bacillus Thuringiensis gene, whose genetic codes kills the bollworm, which plagues the cotton plant (10). The case primarily focused on the interpretation of Sec 3(j) of the Patents Act, which became the major reason for revocation of the patent. The infusion is of nucleic acid sequence, which is covered by the definition of “what is not an invention” under Sec 3(j) of the Patents Act (11). It came as an important aspect of the IP laws, as this case brought an important observation that Patent Act is not complimentary but is exclusive of the Plant Variety Act, the Monsanto Patent should have protected the technology under the Plants Variety Act (12).
The concept of IPRs in the agricultural regime is comparatively new which has emanated as a result of International Treaties, where the basic objective is to develop intensive farming by using technology. The countries and the WTO are taking steps to bring a revolution in the agricultural development so that the technology can be shared amongst the countries and which ultimately serves the purpose of balancing the profits to the innovators and the welfare of farmers, breeders etc.
The judgment of Monsanto Co. highlights the adversities faced by multinational companies in commerce with the patent laws at a period when the country of about 1.3 billion populace is engaged in efforts to attract foreign companies to invest in mega projects. There have been constant efforts by the government to strike an equilibrium and to guarantee that indispensable items like seeds and drugs are accessible to people at affordable prices.
- Journal of Intellectual Property Rights, Vol. 16, March 2011, p 124.
- R. Kalpana Sastry, 105th FOCARS, p 1, https://naarm.org.in/focarsrepository/files/6.%20Intellectual%20Property%20Rights%20in%20Indian%20Agriculture.pdf.
- Sunita K Shreedharan, Journal of Intellectual Property Rights, Vol 16 March 2011, Agricultural Research vis-a-vis the Cresting IPR Wave in the 21st Century, http://www.manupatra.com/.
- Patents and Seed Industry, The Hindu, October 2016, http://www.thehindu.com/opinion/letters/Patents-and-seed-industry/article16077890.ece
- Ankita Kandpal, Agricultural Economics Research Review Vol. 28 (No.1), Recent Trend in Patenting Activity in India and its Implications for Agriculture, p 143.
- The battle over BT cotton, The Hindu, October 4, 2016, http://www.thehindu.com/opinion/op-ed/The-battle-over-Bt-cotton/article15424211.ece.
- Ashutosh Gambhir, Bar & Bench, April 13, 2018, Monsanto v. Nuziveedu: Delhi High Court holds Bt cotton seed unpatentable, https://barandbench.com/monsanto-v-nuziveedu-delhi-hc-holds-bt-cotton-seed-to-be-unpatentable/.
- Pratistha Sinha, Mondaq, May 17, 2018, India: Monsanto Technology LLC And Ors Vs. Nuziveedu Seeds Ltd. And Ors, http://www.mondaq.com/india/.
- Prashant Reddy, Spicy IP, April 15, 2018, Delhi High Court’s Judgment in Monsanto v. Nuziveedu delivers a Deadly Blow to the Agro-Biotech Industry, https://spicyip.com/2018/04/delhi-high-courts-judgment-in-monsanto-v-nuziveedu-delivers-a-deadly-blow-to-the-agro-biotech-industry.html.