Vivian Fernandes summarises the judgement of the division bench of the Delhi High Court which over-ruled the order of the single judge delivered in March last year on the patentability of genetically-modified (GM) or transgenic traits.
The DNA construct in Monsanto’s Bollgard II technology which produces the toxin that kills bollworms in cotton plants is indeed man-made and not found naturally in plants. Though new, inventive and not existing in nature, it fails to meet other criteria that make it eligible for protection, a division bench of the Delhi High Court comprising Justices S Ravindra Bhat and Yogesh Khanna held in its order delivered on Wednesday and published the next day, striking down the MNC’s patent on the technology. Monsanto had applied for the patent in May 2001 and was granted it in February 2008.
The court did not agree with Monsanto’s contention that the DNA construct or nucleic acid sequence was a microorganism and therefore outside the ambit of patent exclusions mentioned in Section 3(j) of the 1970 Patent Act. It observed that the sequence has no existence of its own. By itself it is inert and inanimate. It becomes useful only when lodged at a particular place in the cotton plant’s anatomy where it produces the bollworm-killing toxin. The sequence, though artificial, is effective only as part of a plant or seed but the law does not allow patents on plants and seeds.
The court also said that the DNA sequence could not be patented because its method of propagation was essentially biological. Monsanto had given donor Bt cotton seeds (50 each) to its Indian seed franchisees against a one-time payment and continuing royalties as a share of the retail price. They sowed their proprietary seeds with traits like high yield alongside the donor Bt seeds. These were cross-pollinated at the flowering stage. The resulting seeds with the insecticidal trait were in turn used to produce proprietary hybrids. After extensive agronomic trials to ascertain their utility to farmers, the seed companies obtained regulatory approval for release of the transgenic hybrid seeds to farmers. The steps of plant breeding and introduction of toxic traits in Bt cotton hybrids being natural biological processes are excluded from patent protection, the court observed.
The court also disagreed with Monsanto’s contention that the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act could not apply to its insecticidal trait because the 1991 international Convention for the Protection of New Varieties of Plants (UPOV) on which it is based says a trait is not a “variety”. But the court said the PPVFR Act would apply to a cotton plant variety with transgenic traits as its meets the criteria of distinctiveness, uniformity and stability. A breeder of such varieties is recognised as such under the act. If the variety with the Bt trait is used to create another new variety, the breeder of the transgenic plant (that is, Monsanto) can claim a share of the benefits from the creator of the new variety.
You can read the full judgement here.
(Top photo by Vivian Fernandes on Bt cotton picking in Mehsana, Gujarat)