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The Supreme Court Ruling Upheld India’s Law, not Monsanto’s False Claims on Patents on Seeds

By Dr Vandana Shiva, 9 January 2019

Monsanto has spread the false claim in the media that on 8th January 2019 Supreme court “upheld” a  Bt Cotton seed patent. Examples of fake news on which Monsanto’s empire  stands are:

Monsanto Wins Legal Case on Seed Patent in Top Cotton Grower, Bloomberg 8th January, 2019”

Monsanto allowed to claim patent on GM cotton seeds.. Business Line, 8th January 2019”

Supreme Court allows Monsanto to claim patent on genetically modified cotton seeds .. Scroll, 8th January 2019”

Monsanto can claim patents on GM cotton seeds, rules Supreme Court, Hindustan Times, 8th January 2019”

This it totally false reporting of the Supreme Court order and the issue of patents on seed. The SC order of 8th January 2019 upheld Article 3j of India’s Patent Law which excludes seeds from patentability. It did not uphold a non-existent “patent on seed” that Monsanto does not and cannot have in India.

India is a civilisation  based on Vasudhaiva kutumbakam, The Earth as One Family. For the last three decades corporations like Monsanto whose only skill is to make poisons that kill humans and other life, started to use the tools of genetic engineering to try and claim patents on life and on seeds.

A patent is an exclusive right granted to an inventor to prevent others from making, using, producing, selling and distributing  the patented  invention. A patent on seeds would prevent farmers from saving and exchanging seed. It would also imply that Monsanto is an inventor of life and the inventor of seed. In India we did not make this ethical and ontological mistake. In our Patent Law we introduced a clause Article 3j which clearly states that the following are not inventions, hence not patentable,

“plants and animals in whole or in any part thereof other than microorganisms; but including seeds, varieties, and species, and essentially biological processes for production or propagation of plants and animals.”

Article 3j prevents Monsanto from having a patent on Bt Cotton seed, contrary to the manipulated media reports. Monsanto had applied for a patent on Bt Cotton but because India’s article 3j does not allow patents on seed, most claims were rejected.

The Indian Patent office, through two examinations had rejected most claims made by Monsanto in the patent titled ‘Methods for Transforming Plants to Express Bacillus Thuringiensis Deltaendotoxins’.

On 30th March 2006, the First Examination Report (‘FER’) issued by the Patent Examiner raised series of objections on patentability and patent eligibility of the invention. In particular, the FER noted that “Claims 1-40, 48-56, 57, 58 are [not] allowable under Section 3(j).”

Patent No. IN214436 was granted in favour of Monsanto Technology LLP., on Feb. 12, 2008 for a period of 20 years with effect from Nov. 4, 1999 (i.e., due to expire on Nov. 3, 2019) ,not for Bt Cotton Seeds but to “a nucleic acid sequence”.

Thus only claims on DNA sequences survived.

Without a patent on Bt Cotton Seed Monsanto has been collecting royalties form farmers. Monsanto illegally introduced Bt Cotton and illegally claimed royalties increasing the price of cotton seeds by 80,000%, this is the primary reason for farmer’s debt and suicide in the cotton area. It continues to falsely claim that it has a patent on Bt Cotton including a distortion of Supreme court order of 8th January 2019 which upheld Article 3j of India’s Patent Law which does not allow patenting of seed.

Farmer’s crises was aggravated by the fact that Bt cotton fails to control pests and has led to an epidemic of the pink bollworm pushing farmers to use more pesticides with many losing their lives to pesticide poisoning.

Not only did Monsanto illegally collect royalties

Monsanto had filed a case against Indian seed companies on “infringement”, falsely claiming that it had a patent on Bt cotton. Even in the SC it kept repeating false claims  that Indian companies had been violating of  “my Patent for 18 years”  to overturn a High Court decision that upheld the exclusion of “Patents on Seeds” in India’s Patent Law.

The case was dismissed by the High Court of Delhi in its Final Judgment dated 11.04.2018.

It was  three claims on DNA sequences that had  been turned down by the division bench of the high court, in addition to claims already rejected by the Patent Office .

On 7th May, 2018,  Monsanto in an appeal in the Supreme Court  tried to not just over rule of the high court decision but Article 3j itself .

And its these three surviving  claims related to Nucleic Acid Sequences (NASs) which were the subject matter before the Supreme Court. Monsanto had deviously tried to argue in the court that they should get a product patent on DNA and genes as chemicals this would have undone Article 3j. The Supreme Court did not overrule 3j and did not grant product patents on genes it has in-fact upheld 3j and in the context of new arguments brought by us on the implications of gene patents including the case of suing farmers, the SC has sent the issue back to the trial court to investigate in detail these multiple aspects facts and law.

Para 19 of the judgement of 8.1.19  specifically records,

“We have considered the respective submissions made on behalf of the parties. Though very elaborate submissions have been made with regard to facts and the technical processes involved in the patent in question, the provisions of the Act, the PPVFR Act and a large volume of case laws for construction of patents, the obligations under the World Trade Organisation (WTO), General Agreement on Tariffs and Trade (GATT), TradeRelated Aspects of Intellectual Property Rights (TRIPS) Agreement, leading to the Patents Amendment Act, 2002 on 25.06.2002, in view of nature of the order proposed to be passed, we do not consider it necessary to deal with the same at this stage, and leave open all questions of facts and law to be urged for consideration in appropriate proceedings.”

In effect, the sword of India’s patent laws hangs large on Monsanto’s “patent”. As previously unknown facts have been disclosed before the Supreme Court during the hearing, it is difficult to see how Monsanto’s patent can survive in a full fledged trial before the Single Judge.

This is yet another setback for Monsanto, after the Delhi High Court in another case recently allowed the Competition Commission of India to investigate further whether it was abusing it’s dominant position in the Seed Industry of India.

India’s regional government’s have also slapped the suppliers of Bt. Cotton seeds with fines running into hundreds of crores as their genetically modified seeds have spectacularly failed to have the stated effect.

Monsanto introduced Bt Cotton illegally in 1998 without approval of the GEAC. Monsanto lied about having patent on Bt Cotton.

Monsanto lied about Bt as a pest control technology.

Now it is lying about the SC order.

Its lies have cost Indian farmers their lives.

We will not allow Monsanto’s lies to continue to kill our farmers.

We will not allow Monsanto’s lies to undermine our Seed Sovereignty and Seed Freedom.

Seed Freedom (Bija Swaraj) is our birthright.

Research Foundation for Science, Technology & Ecology had intervened in the matter through it’s director Dr. Vandana Shiva. They had been represented by Mr. Prashant Bhushan.

For more details on the Patents on Seeds issue please read Origins by Dr Vandana Shiva, Natraj Publisher.