The Bt and GM Technology Patent Chronicle in India (Monsanto vs. Nuziveedu): The Intricate Dynamics of Patentable Exclusions and Plant Varieties?

Abstract

The science of genetics and the realm of patents! Can there be a real reconciliation between the two? This is the burning question in the Indian agro-biotech patent space that was played out in the recent high stake litigation (between Monsanto and Nuziveedu in the Delhi High Court); and more particularly the decision focused on whether Monsanto’s particular Bt gene sequence technology (wherein the particular gene sequence of the Bt. Bacteria is inserted into a cotton genome) merits patent protection? In so determining the patent eligibility of Monsanto’s patent (IN 214436) over its Bollgard-II Bt cotton seed technology, concerning modified gene sequence of Bt. Bacteria incorporated into the cotton genome which provides increased boll-worm resistance, the division bench of the Delhi High Court (on April 11, 2018), revoking the patent, pronounced that the claims in contention constitute a patent ineligible subject matter. The case has been appealed to and admitted by the Supreme Court (SC) and the SC (on May 7, 2018) rejected the plea by Monsanto to stay the Delhi HC order, with the next hearing been scheduled for July, 2018. What also emerged through is that this patent chronicle should mark the first-of-its kind determination on the scope of patentability of GM crops. Further, in determining the scope of GM technology in the context of plants and plant material (here seeds) as a patent eligible subject matter, the intricate dynamics of: (i) the “patent exclusions under Section 3(j) of the Indian Patent Act” and, (ii) the applicability of alternate forms of intellectual property protection, viz., the “plant varieties protection” under the Protection of Plant Varieties and Farmers Rights Act (PPVFR Act), 2001, were also scrutinized by the division bench of Delhi HC; in the sense, that whether these GM technologies merit legal protection under the Patents Act or legal protection should be sought only under PPVFR Act, a sui generis legislation to confer limited protection only for the plant varieties (incorporating the genetically modified material).