Genetic seeds are back

EDIT: (I published this article on 8th January and then received a mail from Advocate Manish Kumar who has pointed out that the news propagated in the media which became a part of my article might have been incorrect. I have included his lengthy mail after the article, Please do read it to make a complete understanding. My thanks to Mr. Manish for taking out the time and writing)

In all the hoopla on 10% reservation, you might have missed the important and long term impact news in the corner of your newspaper.

Monsanto (Recently acquired by Bayer) which had lost its 2015 case in Delhi high court to have pricing freedom on its genetically modified seeds has won it in the supreme court.

Delhi High Court's earlier contention that patent on plant and seeds varieties cannot be enforced in India, was overturned by the supreme court. 

Issue is not that the price of seeds for this particular crop will increase. Issue is that with this ruling as a precedent, life is going to get tougher for farmers for all varieties of genetically modified seeds. So let me tell you the good, the bad and the ugly

The Good

Good for companies which were shying away from putting in efforts to create pest resistant seeds. Also good for foreign companies, as now there is a precedent that their intellectual property rights will be honoured in India on this particular domain, that is patenting of plant and seeds variety.

The Bad

Bad for farmers in large part of India who are still dependent on monsoons which often fails in parts. The genetic variety of seeds will now be priced independently by the company. Earlier it was being done in conjunction with the agriculture ministry. This means that even if a farmer does the cost benefit analysis and decides to plant the genetic modified seeds, there is a good chance that the farmer might have to shell out more money.Most of this money comes via loans. Think of it in this way that now seeds will take the share of wallet from insecticides. Most of the insecticides are produced locally, while the GM seeds right now are on licences from outside the country. This means that local production in insecticides will be hit and money flowing outside will grow. The silver lining is that there will be lower insecticide usage. The only way out is the government's R&D department, which has a good track record of producing pest resistant varieties to create a balance. It can do that by producing good seeds as it has been doing, as well as helping local companies get in this field. The government will also have to be vigilant that R&D output doesn't fall in volume or quantity. Some european countries have a complete Ban on GM seeds while others require any food produce with GM crops to be labelled as such.

The Ugly

Monsanto has a history of suing small farmers in US for patent enforcement. Hundreds of small farmers were sued when they ended up planting seeds from the first season over to the second season. Cases where pollen grains migrated from the GM variety crops to neighbouring fields also came up for litigation. Such litigation will surface in India as well. Imagine that your neighbour has planted GM seeds and your plants are pollinated by them via birds etc. and by that virtue, you lose right over your seeds. Also most of GM seeds are designed in such a way so that they need to be bought every season. This creates additional burden, which a financially savvy corporate farmer can calculate, but for most farmers will be a shock. Indian farmers at present get their seeds saved from their crops.

Monsanto gained some 23 million USD by suing farmers who had gone on to replant the seeds from the first season crops in USA in 2013. In one case a farmer who had bought livestock feed and unknowingly planted it found himself in the supreme court.

The legal issues surrounding Genetically Modified crops

Monsanto in its supreme court briefs has maintained that if someone uses seeds from the original planted crops, its akin to manufacturing more of the product without buying rights from Monsanto.

This was upheld by the supreme court in USA.

The larger issue still remains around the patenting of living organisms. If a company sells you a Dog, does it still have the right over the puppies produced from the dog? Throughout ages thoroughbreds have been sold and bought without any such restrictions, as the inherent thought has been that not only you buy an organism, but you buy the rights to any future progeny as well. Not so in case of Monsanto.

Conclusion and way forward

When patents are granted, they are done so with a particular time frame (20 years) in mind. The idea being that the patent owner should get benefitted from the effort on innovation for a certain time, after which the society as a whole should benefit.

Only recently (2015) have some of monsanto's first seeds started entering public domain. So I hope that Indian Companies take that into account as well and make some business of helping it reach the farmer.

FSSAI will also need to look into regulations around labeling of GM crop produce so that people make informed choices while buying their food. GM crops are around 25 year old technology and their long term effects on environment and humans is not known. So while they may go a long way in solving world hunger there might be unknown penalties which future generations may have to bear.

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Letter from Adv. Manish Kumar explaining the judgement

Dear Satyarth Ji,

I just finished reading your thoughts published on your LinkdIn wall, on the Supreme Court Judgement following the appeal filed in the case of Monsanto v. Nuziveedu (Civil Appeal No. 4616-4617 of 2018) which came out on 08.01.2019. It was reported incorrectly by one media and was immediately picked up by many other mainstream media and got published and re-published. It is most unfortunate that we cannot trust our mainstream media to report a Supreme Court judgement correctly. It only takes 27 pages read and a little patience to read and understand the judgement. I have attached the judgement copy for your reference.

The suit has not been decided to its finality. It has only been sent back to the single bench of the High Court of Delhi with a direction to put the suit on full trial. The suit is particularly interesting for Indian agricultural, pharmaceutical and Biotechnology sectors. The issues in this case vary from applicability of section 3(j) of the Patents Act, 1970, the Protection of Plant Varieties and Farmers Rights Act, 2001 with respect to the future crop/seed varieties that results out of cross between GM variety and wild type variety. The dispute will also see issues related to licenses, tort, arbitration, competition, and of course pricing. 

Earlier, before the divisional bench of the Delhi High Court, by some oversight/misjudgment, Monsanto agreed to deciding the suit of infringement and revocation of patent suits as a single summary trial. Divisional bench, without applying common sense to the matter, and without understanding the gravity of nature of technical merits involved in the patent, decided the suit summarily. Monsanto challenged the same in the Supreme Court and the Supreme Court has rightly held that these kinds of complex issues cannot be decided in summary proceedings.

A lot has to be seen in this patent war. We are all keeping our eyes on what will be the outcome of this suit. For better or worse, the courts of India will settle this case based on its merit and clear the clouds of uncertainty over the dubious and often treacherous patent laws and practices. As mentioned in your article, the USA has its ways (lobbies) for legislation and justice, India has her our own interests and ways to see it through. We have exercised the PCT undertaking as agreed without the (Plus) of exemptions for the public good in India, to quote the best example of section 3(d) of the Patents Act, 1970 of India. Parties may like it or not, courts might give very different interpretations of the law from what is generally anticipated. 

In any case, I wrote this long mail to you, since you have a wide reach and this particular article of your has received over 550 likes and 18 comments so far, is based on incorrectly reported news that the Apex Court of India and favoured its judgement in Monsanto's favour. 

I hope you will see my mail in good faith and do as may be necessary. Do let me know your opinion.

Looking forward to many more interactions with you in future.  

Thanks & Regards,

MANISH KUMAR

(Registered Patent Attorney)

Team Lead (IP & Legal), Bharat Biotech International Limited, Hyderabad.

B. Tech Biotech (Molecular Biology), 

LL.B (Hons in IP Laws) - IIT Kharagpur.

Contact - 08309993511

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In case you would want to read more on it

Reference

1. Supreme court ruling: https://www.livemint.com/Companies/VYK4snTfxhsM2ZA17TWeYO/Supreme-Court-holds-Monsantos-patent-on-GM-cotton-seeds-val.html
2. Monsanto sued hundreds of small farmers: https://www.theguardian.com/environment/2013/feb/12/monsanto-sues-farmers-seed-patents
3. US supreme court case Bowman Vs Monsanto: https://en.wikipedia.org/wiki/Bowman_v._Monsanto_Co.
4. Roundup Ready soybean comes out of monsanto Protection: https://www.technologyreview.com/s/539746/as-patents-expire-farmers-plant-generic-gmos/

Disclaimer:

The views expressed here are my own and don't reflect the views of any of my employers present or past.