Testing Times

DELHI HC DENYING MONSANTO’S PATENT RIGHT OVER A GM COTTON SEED HAS TRIGGERED A DEBATE ON THE PATH AHEAD FOR INNOVATION-LED SEED COMPANIES.

- Joe C. Mathew

ON MAY 22, the Competition Commission of India (CCI) approved the $66 billion mega-merger of German chemical and pharma major Bayer AG and the US seed giant Monsanto. As the merged entity will have intellectual property rights (IPR)linked control, including patent protection, over more than 90 per cent of the genetically modified (GM) traits across crops that are licensed and marketed globally, the CCI approval came with some riders. One of these stipulations is known to be that Bayer, which is acquiring Monsanto, will have to grant non-exclusive, royalty-bearing licences to its digital farming products and platforms commercialised in India to avoid monopoly.

Complying with the CCI mandate could be the least of Bayer’s worries at the moment. There are bigger challenges to overcome before the conglomerate and similar innovation-intensive companies could hope to enjoy unbridled IPR protection in India. To start with, a Delhi High Court division bench has ruled that Monsanto is not entitled to a patent over the Bollgard-II Bt cotton seed, a GM variant that resists the boll worm pest. According to the ruling, these varieties are not protected under India’s Patents Act, 1970, but Monsanto can avail a different kind of IPR protection, a registration under a separate law called the Protection of Plant Variety and Farmers’ Rights (PPVFR) Act. Under PPVFR, the company will receive a trait fee fixed by the PPVFR Authority, but it can no longer negotiate licensing agreements with local firms – a given ever since the multinational has introduced the GM trait (Bt cotton) in India. It is the only GM crop allowed in the country since 2003 (an upgraded variety came in 2006).