Monsanto's climate-resilient crop patent claims rejected in India

India's patent appeals board has denied MonsantoBSE 0.12 % a patent for a genetically-engineered method of increasing climate resilience in plants. The decision is significant not only for Monsanto's loss of possible exclusivity in an increasingly important segment but also for the interpretation of India's home-grown clauses in patent law — these are unpopular with global companies — for the first time in the case of plants.

The Intellectual Property Appellate Board, in rejecting the American seed company's patent claims, said the technology is merely a discovery of a new property of known substance and not an invention under Section 3(d) of the Indian Patent Act. Section 3(d) is the same Section under which the Swiss drug-maker Novartis' patent claim for its cancer drug Glivec was rejected. An appeal was turned down by the Supreme Court in April. Developing countries are looking to include this clause in their own patent laws.

Monsanto's method of "enhancing stress tolerance in plants and methods thereof" has already been accepted in the US and Europe. "This is the first time Section 3(d) has been used on plant patents, and its implications are farreaching," said environmentalist Vandana Shiva. This is also the first judgement citing Section 3(j), which specifies that plants and animals aren't patentable.

Monsanto, which earned over $13 billion in revenue last year, played down the decision while its baiters welcomed it. In an emailed statement, Monsanto said the company is in the process of evaluating possible actions with its advisers, but does not foresee any special implications from this decision.

"The patents are essential for continued investments. Research and development efforts take over a decade to develop and patent protection is a must."

But Shiva said that if the judgement is upheld, "Monsanto cannot do with climate resilient crops what it did with Bt cotton." Critics such as Shiva blame Bt cotton for the ills in the cotton belt, including high cost of the seed, which they argue is one of the reasons for farmer suicides. Shiva said she is ready to intervene in case Monsanto appeals in the Supreme Court.

Though Monsanto played down the decision, observers described it as a possible loss of an exclusive market.

"This is a setback to Monsanto because they were betting on transgenic crops," said Subhra Priyadarshini, who tracks genetically modified technology closely and is editor of online science portal Nature India.

Rahul Dev, Patent Attorney Partner at Delhi-based Tech Corp Legal, said the invention would have been applicable to a wide range of seeds, including soybean, corn, canola, rice, cotton, barley, oats, turf grasses, cotton and wheat.

"This patent was very crucial for Monsanto. Although currently, Monsanto sells only one variety of seeds (hybrid maize seeds) in India. Had this patent been awarded, Monsanto could have enjoyed exclusive patent rights for all the seeds sold in India that used this technology." This view was shared by Meenakshi Khurana, patent attorney at Khurana and Khurana.

She said climate-resilient plants will be important in times of climate instabilities, which are predicted to be increasingly common in coming years. "In calamities like the Uttarakhand floods, salt-tolerant crop varieties are needed in large amounts by the farmers who otherwise cannot produce crops because of sea salt deposition." No protection for such patents means prices of such plants will remain in check.

According to a report by the Washington-based Center for Food Safety, Monsanto had received over $23.5 million from patent infringement lawsuits against farmers and farm business by end of 2012. It also said three agrichemical firms — Monsanto, Du Pont and Syngenta — now control 53% of the global commercial seed market.

Tech Corp's Rahul Dev said the implications could be farreaching. He said the judgement could also set precedent for debates around genetically modified crops, including the Biotechnology Regulatory Authority of India Bill which would set rules for regulating such corps. "Companies like Monsanto will now have to plan their business strategies accordingly.

After crossing all hurdles, even if such genetically modified crops are allowed to be sold in future, they might not be able to enjoy exclusive patent rights, which will definitely lead to more competition and low pricing of such seeds."