GS Mains Model Question & Answer: Bt cotton has spawned the
mother of all intellectual property (IP) disputes in India, in various courts,
government agencies and tribunals. Comment.
Q. Bt cotton has spawned the mother of
all intellectual property (IP) disputes in India, in various courts, government
agencies and tribunals. Comment. (12.5 Marks)
(General Studies Mains Paper III – Science and Technology: bio-technology
and issues relating to intellectual property rights)
Model Answer :
Bt stands for Bacillus thuringiensis, a bacteria whose genome codes for a
protein that kills the bollworm, a pest that has perennially plagued the cotton
The patent does not cover the plant itself, as plants and
animals are ineligible for patent protection in India, as are ordinary
biological processes for creating them. However, microbiological processes (such
as methods of creating transgenic varieties) and microorganisms (such as new and
inventive transgenes and their constructs) are patentable under the terms of the
Indian Patents Act, and Monsanto’s patents cover most of these components. It
bears noting in this regard that Bt cotton technology was never static, but
evolved over time to cater to the pest resistance that soon developed. While the
technology pertaining to Bollgard-I was never patented in India (since this
technology was discovered prior to India’s undertaking of Trade-Related Aspects
of Intellectual Property Rights or TRIPS commitments), Bollgard-II was, and it
is this technology that is in dispute.
Using the patented technology, Monsanto created a host of
donor Bt cotton seeds and distributed them to seed companies under specific
agreements mandating the payment of royalties (trait fees), etc. Seed companies
in turn used these donor seeds to introgress the desirable genetic trait
(bollworm resistance) into their own specific hybrid varieties by backcrossing.
Monsanto’s patents cover various components of the technology
embedded in the donor seeds handed out to seed companies (the new man-made
transgene, the DNA construct and the method of creating the new cotton genome).
Any seed company that uses this donor seed and creates a new plant variety is
entitled to register such variety under the PPVFRA.
This new plant variety registration, however, does not
extinguish Monsanto’s upsteam patent rights. Neither does the patent right
override the plant variety protection. They co-exist. As such, seed companies
cannot commercialise their hybrids without a patent licence from Monsanto, in
much the same way that Monsanto cannot sell or distribute these hybrids without
permission from the seed company. If Monsanto refuses to licence the seed
companies, they can move for a compulsory licence (CL) under the Patents Act,
provided they satisfy the terms of Section 84, which states that a CL could be
granted if the patented invention is exorbitantly priced or not available in
reasonable quantities to the public or is not being worked in the territory in
The DIPP (Department of Industrial Policy and Promotion)
proceeding is a particularly interesting one, given that Section 66 of the
Patents Act has been invoked, an exceptional provision that provides for
revocation on grounds that the patent is “mischievous to the state or generally
prejudicial to the public”. The key contention appears to be that the patent is
no longer effective, given the pest resistance that developed over time. A
ground not likely to pass muster with a court of law, given the rather high bar
for invoking Section 66.
Quite apart from the fact that it appears a tad bit
paradoxical that while one wing of the government (the Ministry of Agriculture)
has recently issued a draft notification qualifying GM technology as an industry
“standard” that must mandatorily be licensed on FRAND (Fair, Reasonable and
Non-Discriminatory) terms to as many seed companies as possible, another one (DIPP)
insists that the technology is useless!
Whatever be our personal predilections against GMOs, it is a
matter of deep concern that government agencies appear to be flouting the rule
of law with impunity. While there may be merit in regulating GMO patents, this
must be done after following due processes under the law, through the relevant
competent authority (such as the Patent Office), and not through abusive
lawmaking designed to seemingly favour one set of stakeholders who are
essentially engaged in a private commercial dispute.
More importantly, one wonders why the government chooses to
concentrate all of its eggs in the Bt cotton basket. Particularly so when its
own institutes contend that even Bollgard-II technology is soon succumbing to
progressive pest resistance. In fact, if it wishes to be a bit radical, the
government could even encourage what maverick scientists did in Assam recently,
when they encouraged farmers to reimagine beetles (that destroyed crops) as
protein-laden delicacies to be consumed with relish. And this leaves us with
just one real question in the end: can the bollworm be barbecued ?