India: A denied patent stands between farmers and GM cotton

Herbicide-tolerant cotton being illegally grown at a field in Maharashtra’s Vidarbha region. Deepak Daware

A strange situation prevails in cotton today. On the one hand, there is a Delhi High Court judgment of April 11, which invalidates Monsanto’s patent on its Bollgard II Bt cotton technology granted by the Indian Patent Office in February 2008. The patent was for a ‘cry2Ab’ gene isolated from a soil bacterium Bacillus thuringiensis (Bt) — more specifically, for a method of synthesising its nucleic acid sequence and inserting the same into cotton plant cells.

The High Court held that this man-made Bt gene sequence had no “intrinsic worth”; it was inert, inanimate and without utility, unless incorporated into a plant variety. But since plants themselves are not patentable under the Indian Patents Act — they are covered under a separate Protection of Plant Varieties & Farmers’ Rights law — the patent on the nucleic acid sequence had no meaning once the gene was introgressed into and became part of a plant.

But the judgment comes even as India has farmers wanting to plant genetically modified (GM) cotton hybrids, incorporating not just ‘cry1Ac’ and ‘cry2Ab’ Bt genes (which code for proteins toxic to Heliothis bollworm insect pests), but also those that enable spraying of herbicides. The technology supplier in this case, too, is Monsanto: the US life sciences major’s Roundup Ready Flex (RRF) cotton contains a ‘cp4-epsps’ gene from another soil bacterium Agrobacterium tumefaciens, which produces a modified protein that allows the plant to tolerate application of glyphosate herbicide. Thus, while farmers cannot spray glyphosate in normal cotton — the chemical cannot distinguish between weeds and the crop itself — they can do it in RRF cotton.

Monsanto had, in March 2013, sought approval from the Union Environment Ministry’s Genetic Engineering Appraisal Committee (GEAC) for the commercial release of Bollgard II-RRF cotton, harbouring both insect-resistance (from Bt genes) and glyphosate-tolerance (cp4-epsps gene) traits. However, in July 2016, Monsanto withdrew the application, along with the dossiers containing the results of all the bio-safety research and open field trials that it had submitted in respect of this GM cotton.

The provocation for the move was the Agriculture Ministry issuing, in December 2015, a Cotton Seeds Price (Control) order, followed by a draft notification on compulsory licensing of GM technologies in May 2016. The first order empowered the Centre to “fix and regulate” the royalty/trait value charged by a GM technology supplier from seed companies that have incorporated it into their cotton hybrids. The second notification obliged technology developers to licence their proprietary GM traits on demand and not charge royalty exceeding 10 per cent of the maximum retail price of the seeds being marketed by the licensees.

Now, with the Delhi High Court invalidating the patent on Bollgard II Bt cotton, any prospect of Monsanto reconsidering withdrawal of its application for commercialisation of RRF technology – which gives farmers the option of spraying glyphosate, rather than relying on manual labour, for removal of weeds – has been rendered remote.

The court’s ruling, moreover, can extend to any man-made nucleic acid sequence of a gene and its introgression into a host plant genome using GM/biotechnological tools. According to one estimate, there are currently at least 107 patents in India, relating to such non-naturally occurring genetic material and production of transgenic plants. All of them — granted not only to the likes of Monsanto, Bayer CropScience, BASF Plant Science and DuPont, but even the Indian Council of Agricultural Research, Council of Scientific and Industrial Research, Indian Institute of Science and other publicly-funded institutions — stand to be invalidated in the wake of the judgment.

The more immediate consequence of the resultant uncertainty on the intellectual property rights (IPR) protection regime for GM technology, though, would be felt on herbicide-tolerant or HT cotton.

It is an open secret that many farmers, especially in Telangana, Andhra Pradesh (AP) and Maharashtra, have been planting Bollgard II-RRF cotton — despite the technology being “unapproved” by the GEAC and Monsanto officially withdrawing its application for commercialisation of the same. If the trade is to be believed, up to a tenth of the cotton seeds in the market now have HT genes — which farmers are illegally sowing.

The AP government, in January, even issued show cause notices to two leading seed companies. This, after leaf samples collected from their hybrids allegedly planted by farmers were found to contain the “illegal and unapproved” cp4-epsps HT gene. On February 9, the state’s agriculture department went a step further. It banned the application of glyphosate formulations “in any of the crops from June to November”! It is obvious that the real target here was HT cotton.

Two things are clear from all this. First, farmers are hungry for technology and will go to great lengths to plant GM crops, whether or not the government and green NGOs like it. Reports suggest that they are even prepared to pay a premium of 50 per cent or more for cotton seeds harbouring HT trait, in addition to just Bt genes. The reason is simple: they know the cost of manual weeding and how unpredictable it is to find labour in the peak agricultural season.

Second, the suppliers of technology — this applies equally to proprietary new-generation pesticide molecules like Dupont’s Rynaxypyr (‘Coragen’) and Bayer’s Flubendiamide (‘Fame’) — are mostly multinationals. For them, IPR protection is a major concern. The government can ensure that these companies do not engage in price gouging, while simultaneously promoting domestic breeding and R&D efforts. But invalidating patents is something they aren’t going to take lightly.

We are seeing this in cotton, where nearly a million Indian farmers last year grew GM hybrids without approval either from the official regulator or the technology developer. They may do so this season as well.