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Synthesis/Regeneration 30   (Winter 2003)

The Monsanto Amendment

The Real Reasons for the Second
Amendment of the Indian Patent Act

by Dr. Vandana Shiva, Director, Research Foundation
for Science, Technology, and Natural Resource Policy

India has amended its Patent Act for the second time since the Trade-Related Intellectual Property Rights agreement (TRIPs) came into force. The first amendment was to introduce exclusive marketing rights and mail box arrangements to implement Article 70.8 and 70.9 of TRIPs.

The issue is clearly not product patents in medicine, since these will in any way not be granted until 2005. The major change in the patent regime achieved through the second amendment is not in the area of medicines and drugs but in the area of seeds and plants, especially genetically engineered seeds.

Methods of agriculture and plants were excluded from patentability in the Indian patent act to ensure that seed, the first link in the food chain, was held as a common property resource in the public domain and farmers’ inalienable right to save, exchange and improve seed was not violated.

There are two amendments in the definition of what is not an invention that have opened the floodgates of patenting of genetically engineered seed.

According to Section 3(i), the following is not an invention:

“Any process for the medical, surgical, creative, prophylactic or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products.”

The new omission of “plants” from this section implies that a modification of a plant can now be counted as an invention and can hence be patented. Thus the method of producing Bt cotton by introducing genes of a bacterium Bacillus thuringiensis in cotton to produce toxins to kill the bollworm can now be covered by the exclusive rights associated with patents.

In other words, Monsanto can now have Bt cotton patents in India. The Amendment of 3(i) is clearly a Monsanto Amendment.

…Monsanto can now have Bt cotton patents in India.

The Second Amendment has also added a new section, 3(j). This is also a Monsanto Amendment since it allows production or propagation of genetically engineered plants to be counted as an invention, and hence patentable. Section 3(j) excludes as inventions “plants and animals … including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals.” However, the emergence of new biotechnologies is often used to define production of plants and animals through genetic engineering as not being essentially biological. Without a clear definition that all modifications of plants and animals are essentially biological, 3(j) allows patents on GMOs and hence opens the floodgate for patenting transgenic plants. The language of 3(j) is a translation of Article 27.3 (b) of TRIPs into India law.

Article 27.3(b) of TRIPs states:

“Parties may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.

“However, parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of the Agreement establishing the WTO.”

It is not surprising that the Monsanto Amendments have been made in India’s patent laws according to TRIPs. After all Monsanto had a hand in drafting the TRIPs agreement.

A global movement is calling for a ban on patents on life and recovering the genetic basis of life as “commons” which cannot be owned and privatized.

James Enyart of Monsanto had said that the Intellectual Property Committee (IPC) of the multilateral corporations that drafted TRIPs:

“Once created, the first task of the IPC was to repeat the missionary work we did in the US in the early days, this time with the industrial associations of Europe and Japan to convince them that a code was possible….

“We consulted many interest groups during the whole process. It was not an easy task but our Trilateral Group was able to distill from the laws of the more advanced countries the fundamental principles for protecting all forms of intellectual property… Besides selling our concepts at home, we went to Geneva where [we] presented [our] document to the staff of the GATT Secretariat. We also took the opportunity to present it to the Geneva based representatives of a large number of countries… What I have described to you is absolutely unprecedented in GATT. Industry has identified a major problem for international trade. It crafted a solution, reduced it to a concrete proposal and sold it to our own and other governments… The industries and traders of world commerce have played simultaneously the role of patients, the diagnosticians and the prescribing physicians.”

Having played patient, doctor and diagnostician, all in one, at the international level, Monsanto is now doing it at the national level.

In the process it has made the government undo its own position in WTO on the TRIPs review. Article 27.3 (b) has been under review since 2000. The whole TRIPs council has to undertake review of TRIPs “in the light of any relevant new developments which might warrant modification or amendment of this Agreement.”

As a result of sustained public pressure after the agreement came into force in 1995, many Third World countries made recommendations for changes in Article 27.3 (b) to prevent biopiracy. India in its discussion paper submitted to the TRIPs Council stated:

“Patenting of life forms may have at least two dimensions. Firstly, there is the ethical question of the extent of private ownership that could be extended to life forms. The second dimension relates to the use of IPRs’ [intellectual property rights] concept as understood in the industrialized world and its appropriateness in the face of the larger dimension of rights on knowledge, their ownership, use, transfer and dissemination.”

Clearly there is a case for re-examining the need to grant patents on life forms anywhere in the world. Meanwhile, it may be advisable to:

1. Exclude patents on all life forms.

2. If (1) is not possible then exclude patents based on traditional or indigenous knowledge and essentially derived products and processes from such knowledge.

3. Or at least insist on the disclosure of the country of origin of the biological source and associated knowledge, and obtain the consent of the country providing the resource and knowledge, to ensure an equitable sharing of benefits.

A global movement is calling for a ban on patents on life and recovering the genetic basis of life as “commons” which cannot be owned and privatized.

On March 26, Monsanto was successful in getting a clearance for commercial planting of Bt cotton through the Genetic Engineering Approval Committee (GEAC).

A few months prior, Monsanto had used the same GEAC to order the burning and destruction of 11,000 hectares of cotton planted in Gujarat under the Navbharat 151 variety which was found to have the Bt gene. The GEAC had recommended the destruction through burning of the standing cotton crop on the ground of its potential to “cause an irreversible change in the environment structure of the soil,” danger to “environment and human health and to obviate any possibility of cross pollination” as well as the fact that “the precautionary principles would require that no product, the effect of which is unknown be put into the market stream.”

Patents on seed transform seed saving into an “intellectual property crime.”

Specifically, on the issue of commercialization, the GEAC had stated:

“This cotton which in appearance is no different from any other cotton will intermingle with ordinary cotton and it will become impossible to contain its adverse affect. The only remedy is to destroy the cotton as well as the seeds produced and harvested in this manner.”

Since prior to the Second Amendment of the Patent Act Monsanto could not use intellectual property rights to have Navbharat seeds destroyed, it used the GEAC to destroy the crop on grounds of biosafety.

However, if Monsanto’s Bt cotton is now deemed to be safe then Navbharat’s Bt cotton would have to be declared safe, undercutting Monsanto’s market monopoly.

To prevent competitors from selling seeds and to prevent farmers from saving seeds, Monsanto has now turned to the patent laws to get monopoly rights.

Corporations like Monsanto genetically manipulate seeds to get control over the seed sector, not to help farmers. If the seeds could be freely reproduced and patented, Monsanto’s monopolies would not have been established.

Will Indian farmers be blamed for theft when Monsanto’s GM cotton contaminates their crops?

Patents on seeds are a necessary aspect of corporate deployment of GM seeds and crops. When combined with the ecological risks of genetically engineered seed like Bt cotton, patents on seeds create a context of total control over the seed sector, and hence over our food and agricultural security.

This is why China has banned foreign investment in the area of genetically modified seed.

There are three ways in which the Second Amendment of the Patent Laws jeopardizes our seed and food security and hence our national security.

First, it allows patents on seeds and plants through 3(i) and 3(j).

Patents on seed transform seed saving into an “intellectual property crime.”

Second, since genetic pollution is inevitable, and the condition of 2% refugia in the GEAC clearance is a recognition of the inevitability of genetic pollution, Monsanto will use the patents + pollution to claim ownership of crops on farmers’ fields where the Bt gene reached through wind or pollinators. This has been established as precedent in the case of a Canadian farmer, Percy Schmeiser, whose canola field was contaminated by Monsanto’s Round-up Ready Canola. Instead of Monsanto paying Percy on the basis of the polluter-pays principle, Monsanto demanded a $200,000 fine for “theft” of Monsanto’s “intellectual property.” Thousands of US farmers have also been sued. Will Indian farmers be blamed for theft when Monsanto’s GM cotton contaminates their crops? Or will the government wake up and enforce strict monitoring and liability?

Finally, the emergence of resistance in pests like bollworm and creation of superpests is another inevitable consequence of Bt cotton. As superpests spread, farmers will be forced to turn to Monsanto for seed supply and hence will be trapped in Monsanto’s patent monopoly.

As superpests spread, farmers will be forced to turn to Monsanto for seed supply and hence will be trapped in Monsanto’s patent monopoly.

The Monsanto Amendments of the Patent Act run counter to Section 3(h) of the Act which excludes methods of agriculture from patentability. Will 3(h) guide the rejection of Monsanto Bt patents or will Monsanto once again subvert law and democracy and claim patents on Bt cotton?

The humble cotton inspired India’s movement for independence through the Charkha and Khadi. In the age of globalization and biotechnology, the freedom of Indian people is once again linked to the fate of cotton.

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