BT COTTON AND IPRs UNDER INDIAN LAW
BT cotton varieties being sold in India are not currently protected by IPRs nationally. However, this situation may soon change with the various revisions in India’s IPR system. It is important for Indian policy makers to analyze the Indian case and the global IPR position relating to BT cotton and evaluate the implications of granting IPRs in India on such technologies. Two IPR systems are relevant in the case of agriculture: patents and plant breeders’ rights .
PATENTS
India’s policy has generally been restrictive in terms of granting IPRs related to agriculture. India’s Patent Law of 1970 did not allow patents on products including plant varieties, tissue culture, etc.3 India also had no system of plant variety protection for decades. Thus, BT cotton could not be protected under IPRs under this system. However, as mentioned before India’s policy is currently undergoing a transition that would affect the BT cotton issue as well. India has undertaken major revisions in its patent regime by amending the Patent Act of 1970. The first amendment took place with the Patent Amendment Act of 1999, the second with the Patent Amendment Act of 2002, and India has currently passed the Patent Amendment Act of 2005. The major thrust of these amendments has been in the field of pharmaceuticals but the changes have implications for the agricultural sector as well.
The legal regime relating to patents for plants and particularly for transgenic crops is still evolving in India and also globally. There is enormous controversy on what should be the standard according to Trade Related Intellectual Property Rights Agreement (TRIPs) and among countries on the scope of such patents. In the case of plants, India’s patent laws have been amended under the Acts of 1999 and 2002 to allow for process patents in the case of plants but not plants per se. Protection can be granted for treatment of plants, which renders them free of disease or increases their economic value. Some authors point out, however, that this may de facto end up in patent coverage for plants. Regarding biotechnological inventions in the case of plants it is not clear if the same would apply. The Patent Amendment Act of 2005 being passed in April, it is difficult to understand its full implications on agricultural inventions. It is reported that product patents for agricultural products are provided for while the question of patentability of micro-organisms and seeds has been referred to an expert committee. The ordinance that preceded the Act did not categorically exclude seeds developed by novel means thus leading to speculation on the possibility of patenting transgenic seeds. Clarity is lacking in this area, which may provide benefits diplomatically, but must eventually be sorted out in practice. To focus on some of the actual developments in the area of patents we can refer to some of the recent patent applications in India both with relation to cotton in general and patent applications filed by Monsanto. Six patent applications related to cotton have been filed in India till December 2003. Monsanto has filed seven patent applications related to plants in the same period. A search in the patent database of TIFAC reveals that Monsanto has filed a total of 72 patent applications in India. The following table lists some of the significant plant related patent applications by Monsanto. Although none of the patent applications mention cotton in the title, Monsanto has filed one patent related to BT.
PLANT BREEDER’S RIGHTS
India, for decades, had no system of plant breeders’ rights. Thus no varieties of plants could be protected under plant variety protection in India, including BT cotton varieties. India introduced the Protection of Plant Varieties and Farmers’ Rights Act in 2001 to allow for plant breeder’s rights in India. One reason for introducing this Act was to conform to TRIPs by granting protection for new varieties. India also attempted to protect farmers’ varieties and other varieties and designed a unique legislation. The Act enables registration under four categories: new variety, extant variety, farmer’s variety and essentially derived variety. Under this Act, the BT cotton variety marketed by Monsanto could be protected as a new variety. Applications under the Act are yet to be made public.
Implications of Granting IPR Protection on BT Cotton Related Inventions in India
India must carefully weigh the costs and benefits of granting BT cotton related inventions IPR protection in India. Implications of such IPR protection on farmers, public sector institutions and domestic companies require analysis. Measures to overcome any negative implications must be devised.
Extent, Scope and Nature of IPR Protection
It is important to evaluate what should be the scope of IPR protection. Broad patent claims may lead to difficulties in acquiring or negotiating many aspects of the plant in question. For example, if India permits similar type of patents which exist in the US related to BT cotton, the broad nature of the claims would restrict our access to technology. According to Purusotama , “if we carefully try to analyse different claims, the inventors have all the rights on almost all the aspects of these plants. In the first place the varieties are patented, and even if we buy these, we are not free to use any part of this plant (leaf ovule, pollen) for further research without obtaining the original inventors permission. Even the technology to generate tissue culture plants of these varieties is patented and the seed which is developed by growing this variety is also patented”. A careful examination must be made when granting Patent claims and mechanisms for transfer agreements and negotiations must be looked into. The nature of the protection granted is also important in the case of plant breeders’ rights. Under India’s current law, claims could be made by firms, public sector institutions, NGOs or farmers on other varieties of cotton provided they can meet the set criteria. The interpretation of these categories could prove crucial in the coming years. In the case of BT cotton varieties or varieties used in developing BT cotton, a situation could arise where there are overlapping claims and disputes over ownership. This could block access and sharing of resources required for innovation.
BT cotton varieties being sold in India are not currently protected by IPRs nationally. However, this situation may soon change with the various revisions in India’s IPR system. It is important for Indian policy makers to analyze the Indian case and the global IPR position relating to BT cotton and evaluate the implications of granting IPRs in India on such technologies. Two IPR systems are relevant in the case of agriculture: patents and plant breeders’ rights .
PATENTS
India’s policy has generally been restrictive in terms of granting IPRs related to agriculture. India’s Patent Law of 1970 did not allow patents on products including plant varieties, tissue culture, etc.3 India also had no system of plant variety protection for decades. Thus, BT cotton could not be protected under IPRs under this system. However, as mentioned before India’s policy is currently undergoing a transition that would affect the BT cotton issue as well. India has undertaken major revisions in its patent regime by amending the Patent Act of 1970. The first amendment took place with the Patent Amendment Act of 1999, the second with the Patent Amendment Act of 2002, and India has currently passed the Patent Amendment Act of 2005. The major thrust of these amendments has been in the field of pharmaceuticals but the changes have implications for the agricultural sector as well.
The legal regime relating to patents for plants and particularly for transgenic crops is still evolving in India and also globally. There is enormous controversy on what should be the standard according to Trade Related Intellectual Property Rights Agreement (TRIPs) and among countries on the scope of such patents. In the case of plants, India’s patent laws have been amended under the Acts of 1999 and 2002 to allow for process patents in the case of plants but not plants per se. Protection can be granted for treatment of plants, which renders them free of disease or increases their economic value. Some authors point out, however, that this may de facto end up in patent coverage for plants. Regarding biotechnological inventions in the case of plants it is not clear if the same would apply. The Patent Amendment Act of 2005 being passed in April, it is difficult to understand its full implications on agricultural inventions. It is reported that product patents for agricultural products are provided for while the question of patentability of micro-organisms and seeds has been referred to an expert committee. The ordinance that preceded the Act did not categorically exclude seeds developed by novel means thus leading to speculation on the possibility of patenting transgenic seeds. Clarity is lacking in this area, which may provide benefits diplomatically, but must eventually be sorted out in practice. To focus on some of the actual developments in the area of patents we can refer to some of the recent patent applications in India both with relation to cotton in general and patent applications filed by Monsanto. Six patent applications related to cotton have been filed in India till December 2003. Monsanto has filed seven patent applications related to plants in the same period. A search in the patent database of TIFAC reveals that Monsanto has filed a total of 72 patent applications in India. The following table lists some of the significant plant related patent applications by Monsanto. Although none of the patent applications mention cotton in the title, Monsanto has filed one patent related to BT.
PLANT BREEDER’S RIGHTS
India, for decades, had no system of plant breeders’ rights. Thus no varieties of plants could be protected under plant variety protection in India, including BT cotton varieties. India introduced the Protection of Plant Varieties and Farmers’ Rights Act in 2001 to allow for plant breeder’s rights in India. One reason for introducing this Act was to conform to TRIPs by granting protection for new varieties. India also attempted to protect farmers’ varieties and other varieties and designed a unique legislation. The Act enables registration under four categories: new variety, extant variety, farmer’s variety and essentially derived variety. Under this Act, the BT cotton variety marketed by Monsanto could be protected as a new variety. Applications under the Act are yet to be made public.
Implications of Granting IPR Protection on BT Cotton Related Inventions in India
India must carefully weigh the costs and benefits of granting BT cotton related inventions IPR protection in India. Implications of such IPR protection on farmers, public sector institutions and domestic companies require analysis. Measures to overcome any negative implications must be devised.
Extent, Scope and Nature of IPR Protection
It is important to evaluate what should be the scope of IPR protection. Broad patent claims may lead to difficulties in acquiring or negotiating many aspects of the plant in question. For example, if India permits similar type of patents which exist in the US related to BT cotton, the broad nature of the claims would restrict our access to technology. According to Purusotama , “if we carefully try to analyse different claims, the inventors have all the rights on almost all the aspects of these plants. In the first place the varieties are patented, and even if we buy these, we are not free to use any part of this plant (leaf ovule, pollen) for further research without obtaining the original inventors permission. Even the technology to generate tissue culture plants of these varieties is patented and the seed which is developed by growing this variety is also patented”. A careful examination must be made when granting Patent claims and mechanisms for transfer agreements and negotiations must be looked into. The nature of the protection granted is also important in the case of plant breeders’ rights. Under India’s current law, claims could be made by firms, public sector institutions, NGOs or farmers on other varieties of cotton provided they can meet the set criteria. The interpretation of these categories could prove crucial in the coming years. In the case of BT cotton varieties or varieties used in developing BT cotton, a situation could arise where there are overlapping claims and disputes over ownership. This could block access and sharing of resources required for innovation.