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BT cotton issue: Supreme court restores Monsanto patent, for now

Indu Bhan

Multinational biotech companies that feared a premature closure of the potentially exponential Indian market for their genetically-modified plant seed technologies saw a ray of hope on Tuesday, with the Supreme Court restoring Monsanto s (now Bayer Monsanto) BT cotton patent in India till its validity is decided finally by the lower court.

This means that the US-based biotech major that has virtually frozen its India plans, hamstrung by adverse government policies, could ask its local sub-licencees like Nuziveedu Seeds for royalties under the Patents Act; however, analysts said it could still find its hands tied in this aspect as the local firms no longer require annual NoCs from the biotech major to sell seeds bearing the patented technology.

A Bayer spokesperson said: The Supreme Court has restored the order of the single judge bench of the Delhi High Court which prima facie validates our patent and has sent it back for a full trial by evidence considering the complexities involved. We feel confident about defending any challenge to our patent by presenting solid scientific evidence and seek adjudication by the trial court on the issue of infringement of the patent.

The patent was rendered non-enforceable in India by a division bench of the high court in May 2018. It had concurred with the government’s contention that, the patented gene, having been inserted into a plant, became a plant itself and ceased to be a patentable product under the Patents Act. The two-judge bench also said Monsanto could alternatively seek protection of its Bollgard-II technology, which helps the cotton plants resist the dreaded bollworm, under the Protection of Plant Varieties and Farmers Rights Act 2001 (which also entities the firm to trait fees but offers much less commercial scope).

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Such a broad-brush approach, if it had found favour with the apex court as well, would have hit the India business of global biotech firms hard. While restoring Justice RK Gauba’s March 2017 s order, the SC bench comprising justice RF Nariman and Navin Sinha said the division bench should have confined itself to examination of the validity of the order of injunction granted by the single judge only and should not have decided about the validity of Monsanto s patent. It remanded the suit to the single judge for disposal in accordance with law and asked parties to cooperate and facilitate the single judge in early disposal of the suit.

Both Monsanto (via its Indian arm Mahyco-Monsanto Biotech)and the Hyderabad-based Nuziveedu had filed cross-appeals against the division bench judgement in the SC.

According to the December 2015 seed price control order issued by the agriculture ministry, the maximum sale price of the widely-used Bollgard II variety of Bt cotton seeds for the 2018-19 kharif season is Rs 740 (inclusive of trait value of Rs 39) for a 450-gm packet. Before the Centre capped retail price of the Bt cotton seed, its price was in the range of Rs 830-1,000/450-gram packet, as existed in 2015-16 kharif season.

While the price controls exist (these are now crippling even the local seed companies), costlier illegal copies of Monsanto s latest seeds are flooding the market. The seeds, being sold by traders without even proper labelling, retail at anywhere between Rs 1,200 and Rs 1,500 per packet.

Unnerved by the HC division bench ruling that made it impossible for it to stop sale of seeds bearing its technology by the sub-licencees and the price controls, Monsanto has been going slow on its plans for the India market. It withdrew the herbicide tolerant cotton seeds from the approval process in India in August 2016. Also, it reportedly put in abeyance plans to submit newer seeds for approval in India.
The country s cotton production has risen manifold since the introduction of Bt seeds from 13.6 million bales in 2002-03 to a projected 33.92 million bales in 2017-18 crop year (July-June). Each bale weights 170 kg.