Sei sulla pagina 1di 10

PATENTING SEEDS IN INDIA: BOON OR BANE FOR INDIAN FARMERS

Tabasum Wani, LL.M. Student (IPR), NALSAR University of Law, Hyderabad.

Friedrich Nietzsche 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 them that enjoy.1
India is an agricultural land, a land of farmers and since the beginning of farming,
farmers have sown seeds, harvested crops, saved part of the harvest for seeds and
exchanged seeds with neighbours. Every ritual in India involves seeds, the very symbol
of lifes renewal. 2
Imagine a banana with a strawberry flavour or a blue coloured apple or a green
coloured orange. These are not just hypothetical thoughts but in todays fast developing
world, these things are quite possible as the technology is developing with a fast pace.
The progress of science and the development of new technologies pose
continuous challenges to the adaptability of the law. However, few advances generated as
much controversy as the innovations of the biotechnology industry. Late in the twentieth
century, advances in genetics research confronted the patent system with the question of
whether genetically altered living organisms qualify for patenting or not. 3
In our country and the other developing countries laws are being framed in order
to fulfill the obligation under the WTO with respect to protection of intellectual property
rights.
Thus, in order to make the Indian Patent laws TRIPS compliant, now patents are
being granted on the genetically modified crops and once granted, it will have great
detrimental effect on the Indian economy. So, granting patent on seeds which confer
monopolistic rights on the owners to exclude anyone else from making, selling,
distributing that which is patented this practice is likely to benefit the multi national
companies rather than the farmers.

1
http://thinkexist.com/quotes/with/keyword/seed/ (last visited 25th March, 2008).
2
http://www.zmag.org/content/showarticle.cfm?ItemID=7249 (last visited 20th March, 2008).
3
Matthew McGovern, Biotechnology And The Patenting Of Living Organisms Animal L. 221,
1997,p.222

Electronic copy available at: http://ssrn.com/abstract=1114522


To know about perspectives and issues relating to patenting of a seed, we should
first understand what is a patent and why is it granted. A patent is a monopoly right
granted for a limited period of time and is a very strong and negative right which
excludes others from using the same as it brings to the inventor a number of privileges
which others do not possess. It protects novel and non-obvious ideas and not just the
expression of those ideas.
Once an invention is patented, the inventor alone reaps the benefits of his creation
and has the right to exclude others from using his invention and in return for this period
of exclusive use, the inventor fully discloses his invention to the public. 4
Indias Stand in the Globe for Patenting Life Forms vis--vis Amendments in the
Indian Patent Act -
India became a member of the World Trade Organization on January 1, 1995. 5 As a
member, it was required to comply with the Trade Related Aspects of the Intellectual
Property Systems (TRIPS) agreement. TRIPS require member countries to provide
adequate standards and principles concerning the availability, scope and use of
intellectual property rights and effective means for the enforcement of these rights.
Part II, Section 5, Article 27 of the TRIPS agreement mandates the member
countries to grant patents for all inventions including both the product or process patent
irrespective of the field of technology, provided they fulfill the patentability criteria. 6
Also, the member countries are free to exclude from patentable inventions, those
inventions whose commercial exploitation would be dangerous to public order or
morality, including human, animal or plant life or health or which causes serious
prejudice to the environment. 7

4
Article I, Section 8, Clause 8 of the U.S. Constitution - In the U.S. Constitution there is a provision
regarding progress of science and useful arts which provides as under The Congress shall have the
powerto promote the progress of science and useful arts, by securing for limited times to authors and
inventors the exclusive rights to their respective writings and discoveries.
5
http://www.wto.org/english/thewto_e/countries_e/india_e.htm (last visited 11th March, 2008).
6
Art. 27. (1) of TRIPS, at - http://www.wto.org/english/tratop_e/trips_e/t_agm3c_e.htm#5 (last visited 20th
March, 2008).
7
Ibid , Art. 27. (2) of TRIPS.

Electronic copy available at: http://ssrn.com/abstract=1114522


Similarly, Article 27(3)(a) lays down that every member country may exclude
from patentability, diagnostic, therapeutic and surgical methods for the treatment of
humans and animals. 8
Whereas the most controversial Article in TRIPS is 27 (3) (b) which provides that
members countries may 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. But the member countries were
to provide protection for plant varieties either by patents or by an effective sui generis
system or by the combination of both. 9
Prior to TRIPS, Indias patent system had been regulated by the Patents Act of
1970 (Patents Act). To begin making Indias law consistent with TRIPS, the Patents Act
was amended in 1999 and 2002 along with further modifications in 2005 in order to
become fully TRIPS compliant. 10
Thus, by comparing both the TRIPS agreement and the Indian law we find that
the Indian law in Section 3 (i), by the amendment of 2002, omitted the word or plants
from the purview of Section 3 and with it methods of agriculture was also excluded from
patentability in the Indian Patent Act to ensure that the seed, which is the first link in the
food chain, was held as a common property resource in the public domain.
This amendment was a bolt from the blue for the Indian Farmers on their
inalienable right to save, exchange and improve upon the seed. 11 Thus, patents can now
be granted for a process for treatment of plants, a GM seed which renders them free of
disease or increases their economic value. 12

8
In the Indian Law, Sec. 3 (i) of the Indian Patents Act, 1970 lays down the same wordings of Art. 27
(3)(a) as to what are not inventions and also in addition to it adds that any process for the medicinal,
surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process
for a similar treatment of animals to render them free of disease or to increase their economic value or that
of their products. At - http://ipindia.nic.in/ipr/patent/patentg.pdf (last visited 1st March,2008)
9
In the Indian Law, Sec. 3 (j) of the Indian Patents Act, 1970 lays down the same wordings of Art. 27
(3)(b) as 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 at - http://ipindia.nic.in/ipr/patent/patentg.pdf (last visited 23rd March,2008)
10
Id.
11
Swati Gola, The Patent Bill 2005: Impact on Agriculture at -
http://india.indymedia.org/en/2005/03/210277.shtml (last visited 3rd March,2008)
12
The amendment has significant implication for agricultural sector in India.
The effect of the amendment can be best illustrated through the example of Bt
cotton. In such a case, a patent is not available for the cottonseed as such, which contains
the Bt gene, whereas the process of engineering the gene into the seed would be
patentable. 13
Thus the method of producing Bt. cotton by introducing genes of a bacterium
thurengerisis in cotton to produce toxins to kill the bollworm can now be covered by the
exclusive rights associated with patents.
This is because of the argument that the Bt gene is primarily a treatment, which
makes the cotton plant more resistant to the bollworm (a pest to which it would otherwise
be susceptible) and also increases its economic value. 14 The process of achieving this
result is patentable now under section 3(i) of the Indian law and once a patent is granted,
no other person would be allowed to utilize the same process to develop seeds with this
gene, without a license from the patent holder. 15
In the same amendment act of 2002 a new section 3(j) was also added. 16 This
section allows for the production or propagation of genetically engineered plants to count
as an invention. But this section excludes as inventions plants and animals in whole or
any part thereof, seeds, varieties and species and essentially biological17 processes for
production or propagation of plants and animals.
Since plants produced through the use of new biotechnologies are not technically
considered essentially biological, this loophole, couched in the guise of scientific

13
T. Ramakrishna, Globalisation and the International Governance of Modern Biotechnology
Development of IPR Regime in India with Reference to Agricultural Biotechnology p 11., at -
http://www.gapresearch.org/governance/NLSIPRsIndiafinal.pdf , (last visited March 15th , 2008),
14
Ibid.
15
Id.
16
Supra n. 9
17
A process is said to be biological if it consists of entirely natural phenomena like crossing or selecting.
Vandana Shiva , WTO, Patents on Life forms And Amendments In Indias Patent Law, p.37. at -
http://www.zmag.org/content/showarticle.cfm?ItemID=724 (last visited March 01, 2008).
advancement, thus allows patents on GMOs18 and hence opens the floodgate for
patenting transgenic plants19 .
Patenting of Seed after Third Amendment 2005 A Comparative Study with
English Case Laws -
The Third Amendment in the Patents Act 1970 came into force on 1st January,
2005. It incorporated the provisions for granting product patent in all fields of
Technology including chemicals, food, drugs & agrochemicals 20
Firstly, it allows patents on seeds and plants which are not a result of essentially
biological process 21 , through sections 3(i) and 3(j), as we saw above. Patents are
monopolies and exclusive rights which prevent farmers from saving seeds; and seed
companies from producing seeds. Patents on seeds transform seed saving into an
intellectual property crime. 22
Patent protection implies the exclusion of farmers right over the resources having
the genetically modified genes and characteristics. This will undermine the very
foundations of agriculture.
For example, a patent has been granted in the U.S. to a biotechnology company,
Sungene, for a sunflower variety with very high oleic acid content. The claim was for the
characteristic (i.e. high oleic acid) and not just for the genes producing the characteristic.
Sungene has notified others involved in sunflower breeding that the developme nt of any
variety high in oleic acid will be considered an infringement of its patent. 23

18
A genetically modified organism (GMO) or genetically engineered organism (GEO) is an organism
whose genetic material has been altered using genetic engineering techniques. These techniques are
generally known as recombinant DNA technology. With recombinant DNA technology, DNA molecules
from different sources are combined in vitro into one molecule to create a new gene. This DNA is then
transferred into an organism and causes the expression of modified or novel traits. At-
http://en.wikipedia.org/wiki/Genetically_modified_organism (last visited 8th March, 2008)
19
Transgenic plants are plants that possess a gene or genes that have been transferred from a different
species. Such modification may be performed through ordinary hybridization through cross-pollination of
plants, but the term today refers to plants produced in a laboratory using recombinant DNA technology in
order to create plants with specific characteristics by artificial insertion of genes from other species, and
sometimes entirely different kingdoms. http://en.wikipedia.org/wiki/Transgenic_plants (last visited 3rd
March. 2008.)
20
Manual Of Patent Practice & Procedure - Patent Office, India (2005), at
http://www.patentoffice.nic.in/ipr/patent/manual-2052005.pdf , (last visited 14th March, 2008)
21
Essentially Biological process simply means any process which is naturally occurring whereas non-
biological process means any thing which involves human efforts.
22
Vandana Shiva, The Indian Seed Act And Patent Act: Sowing The Seeds Of Dictatorship , at -
http://www.nwrage.org/index.php?name=News&file=article&sid=262 , (last visited 14th March, 2008)
23
http://www.zmag.org/Sustainers/Content/2005-04/07shiva.cfm (last visited 10th March, 2008)
Thus, it can be interpreted that if one gets a patent on any trait in a seed apart
from the genes producing the seed, that person not only owns the seed but the very plant
at large. So, it can be said that not only seeds are been granted patent in todays scenario
but a patent holder controls a plant life as such which excludes all others from its use thus
creating a major drawback for the farmers as well as the society at large.
In an English case of Imagio Nursery vs. Daina Greenhouse,24 Judge Spence
Williams, for the U.S. District Court for the Northern District of California, ruled that a
plant patent can be infringed by a plant that merely has similar characteristic s to the
patented plant.
Thus, a company can introduce traits through genetic engineering, and then claim
monopoly on the trait even in traditional varieties through a product patent. A product
patent in effect says that it does not matter how a property was created, came into
existence, whether from a result of evolution, or farmers breeding, or by whatever means
but if the end product is similar to the one already patented, it will be a direct
infringement and theft to the patent 25 and similar cases are likely to happen in India in the
coming future as India is also producing Bt cotton in a large scale.
Secondly, genetic pollution is inevitable result of genetically modified organism.
For e.g., Monsanto, an agricultural giant based in U.S.A. uses its patents and pollution to
claim ownership of crops on farmers fields where the Bt. gene has already reached
through wind or pollinators.
The case of a Canadian farmer, Percy Schmeiser, is an example of this where
thousands of U.S. farmers have been sued whose canola field was contaminated by
Monsantos Round up Ready Canola. Monsanto demanded $200,000 fine for theft of
its intellectual property. Although several similar lawsuits have been filed against
farmers in North America, this is the first case that ended up in a trial. These types of
similar cases have already been dealt with by the U.S. courts where thousands of U.S.
farmers have been sued for contaminated crops. 26

24
69 F.3d 1560, 1563 (Fed. Cir. 1995)
25
Supra n. 23
26
Ibid.
As the patents are granted on seeds in Canada, the applicability of such unilateral
Canadian laws will adversely affect the status of the Indian farmers in Indian scenario
when same kind of situation will arise here.
Now the question arises if the cost of the seeds are increased due to such
applicability whether the govt. is willing to extend the subsidy coverage to the marginal
and poor farmers and also at the end of the tenure if the end product does not turn out as
it is promised by the MNCs providing those seeds then, whether that company or any
organization or the government itself is going to cover such losses by any insurance
policy providing some financial support to compensate the farmers on adequate grounds.
A Crop Insurance Scheme may be carefully implemented so that farmers who are
affected by crop failure will be relieved of the subsequent financial burden. Specific
attention must be given to cover the lost profits of cash crops such as cotton, sugarcane,
and edible oils.
So, this is a high time for the law framers and the legislature to draft some rules to
mitigate such dare consequences and to benefit the farmers as well as protect the integrity
of India as Indias major economy thrives on agriculture.
A question arises here as to while having already an explicit law providing
protection on plant varieties in the form of Protection of Plant Varieties and Farmers
Rights Act, 2001, what was the need to provide product patents on seeds through
amendment of the Patent Act? It creates confusion, as it does not make clear which
protection shall be granted to seeds of Genetically Modified crops. Shall they be patented
or shall they be protected as a plant variety?
Countries like U.S.A. already provide the most liberal scenario, providing both
patent and PVP option to protect plant and plant varieties. The European Union has also
issued a Directive on the legal protection of biotechnological inventions to clarify how
patent laws should be applied to biotechnological inventions.
The genes used for transforming the transgenic varieties may be construed to be
biotechnological inventions and considered eligible for patent by some countries.
However, some countries may not consider gene as invention but only discovery,
which cannot be patented. In situations like this, Judgment would rely solely on the
respective national patent laws. 27
Conclusion
Globalization, WTO trade policies, and domestic negligence have had a devastating
effect on Indias farmers. While natures unpredictability has been additionally
detrimental to the welfare of farmers in some regions, these are challenges tha t farmers
have been able to use their prowess to overcome in the past.
Traditionally, farmers have saved their best seeds and used them again the next
year. Now, however, companies sell GM seeds under the agreement that they be used in a
single season, forcing farmers to buy the new seed each year. For the first time in history,
farmers risk losing the right to save their seeds, and along with that, their autonomy.
India has taken lead amongst the developing countries to come out with
legislation (PPVFRA) that not only protects the interests of breeders, but also farmers.
This is of significant importance since major portion of Indias population is engaged in
farming sector. Such legislation has successfully brought Indias laws in conformity with
TRIPS and simultaneously protected the interests of farming.
As the amendments to the Patents Act have been made recently in 2005, the
ultimate results as to their impact on the Indian agriculture will emerge with the passage
of time.
The construction of the provisions will depend upon judicial interpretation in the
relevant circumstances. However, one thing is clear from the above discussion that
patenting seeds will tend to dilute the effect of strong farmers rights provided by the
PPVFRA as genetically modified crops have converted a once innovative and
knowledgeable community into a community that can no longer works with the earth
which they know, but is dependent on costly, unnatural inputs with which they are
unfamiliar. 28
Thus, the farmers rights concept should also be extended to patents, keeping in
mind the peculiar characteristics of Indian agriculture as the Seed Act of 2004 has
nothing positive to offer to farmers of India as it merely aims at preventing farmers from

27
Supra n. 11.
28
Indias Agrarian Suicides available at http://www.navdanya.org/news/04july15.htm(last visited 4th
March, 2008).
saving, exchanging and reproducing seed as it just offers a promise of monopoly to
private seed industries, which has already pushed thousands of our farmers to suicide
through dependency and debt caused by unreliable, high dependency and non-renewable
seeds.
In the Seeds Act, enormous powers has been granted to the seed inspectors by the
Act to search, seize and confiscate saved seeds of the poor farmers which acts as an
instigator for the farmers to commit suicide as at the end of the day when a farmer is left
with nothing in his hands, he finds no other option but to commit suicide.
These acts can be curbed if a specific amendment is made in the present law
relating to seeds, plants and patents.
In India, where people will likely not be able to afford high-tech seeds and the
associated chemical inputs year after year, the introduction of GM seed varieties presents
a particularly grave threat to the food security and food sovereignty of thousands of local
and indigenous farming communities.
Indias agriculture has turned into a negative economy due largely to three main
factors: rising costs of cultivation, plummeting prices of farm commodities, and lack of
credit availability for small farmers.
Instead of learning from the mistakes of the past, we have now been thrust into
the Gene Revolution. This streamlined form of agriculture promotes the planting of
millions of hectares of land with jus t a few crops, such as Monsantos Round-up Ready
Soya, genetically engineered to resist the companys own chemical pesticide. The rapid
introduction of just a few GM crops since the last decade is threatening to displace
traditional varieties even more aggressively than did the Green Revolution.
So, these issues on patenting life forms and seed monopolies will not disappear as
the question still remains as to who really owns seeds as the biotech industry threatens
long accepted norms. They will have to be addressed in W.T.O. and in the Indian
parliament and a specific mechanism must be sorted to balance the needs of both the
corporate world and that of the farmers. The Patent debate is not over, it has just begun.
Thus, farmers rights must be strengthened, and they must retain their rights to
save seeds and farmers who choose not to grow GM crops should not be punished by
corporations seeking to control traditional resources, and appropriate steps should be
taken to avoid cases like that of Percy Schmeiser in India.