Indian scientist and environmentalist Dr. Vandana Shiva has joined hands with ‘No Patents on Seeds’ coalition in their opposition to a patent granted by the European Patent Office (EPO) in May last year to Monsanto Invest N.V. over ‘closterovirus-resistant melon plant’. The patent claims a new variety of melon which is resistant to Curcurbit Yellow Stunting Disorder Virus (CYSDV) bred using closterovirus-resistant trait identified in few melons of Indian origin. The Indian variety has long been registered in international seed banks (PI 313970) and the claim according to opponents uses conventional breeding methods of crossing and selection to create the new resistant varieties.
The opponents seek complete revocation of the patent for lack of inventiveness and have pointed out that conventional breeding methods are beyond the scope of patentability under Article 53(b) of the European Patent Convention, 1973. Furthermore, they allege that the application does not sufficiently and clearly disclose information required to breed CYSDV resistant melons. More importantly, the opponents fear that the patent would deny ‘access to genetic resources necessary for further breeding’. In this regard, Dr. Shiva’s Navdanya argues that the claim is not patentable under Article 53(a) as it is against ordere public for violating provisions of the Indian Biological Diversity Act, 2002 enacted pursuant to Convention on Biological Diversity (CBD).
Bio-piracy of Indigenous Melons
Dr. Shiva’s Navdanya has deposed that Monsanto’s patent violates the following domestic biodiversity and plant variety legislations for not obtaining prior approval from the Indian Government:
(i) Biological Diversity Act, 2002: Section 6 of the Act mandates approval from the National Biodiversity Authority (NBA) for acquiring a patent right anywhere over an invention based on biological resources obtained from India. Given that Monsanto did not obtain any permission from the NBA and Indian melon varieties were used in creating the new variety, they can be prosecuted under the Act for bio-piracy.
(ii) Protection of Plant Varieties & Farmers’ Rights Act, 2001: The subject matter of the Act deals with granting and protecting rights of farmers and breeders of new plant varieties. The Act, however, nowhere imposes any obligation on breeders’ to seek permission from the Plant Varieties Authority before seeking an IP right over new varieties bred using indigenous biological resources. In fact, Section 30 permits all breeders to use any extant variety for creating new varieties without conflicting with other rights. Even otherwise, the Act is territorially limited to protection of new plant varieties domestically and it would not be sufficient to deny a patent abroad. Hence, I see no violation of sovereign rights under the Act.
What are they actually trying to oppose?
An underscore to this opposition is the violation of the Biodiversity Convention to which India is a signatory. Article 15 of the Convention recognizes sovereign rights of States over its biological resources. It allows the States to regulate access to their genetic resources and to enact legislations to mandate consent prior to obtaining access. As a fair and equitable bargain for providing access, the States can further require sharing of the ‘results of research and development and the benefits arising from commercial and other utilization of genetic resources’. Clearly, as the opponents rightly fear, breeders would be prevented from creating new varieties inheriting the resistant trait. This is nothing but misappropriation of Indian biodiversity and violates CBD which EU members have agreed to bind themselves.
Under section 18 (4) of Biodiversity Act, it is the under the function and power of The National Biodiversity Authority may, on behalf of the Central Government, take any measures necessary to oppose the grant of intellectual property right in any country outside India on any biological resource obtained from India or knowledge associated with such biological resource which is derived from India. It is good development & great concern of NGO to doing the same function.
According to claims, Monsanto used conventional breeding methods to develop that new variety of melon which is resistant to Curcurbit Yellow Stunting Disorder Virus (CYSDV) bred using closterovirus-resistant trait. But, if we look into the definition of “commercial utilization” under section 2(f) of BD Act, which exempt conventional breeding from NBA Approvals. What is conventional breeding? ?. It is not defined in the said act, so it became matter of debate & leaves many unanswered questions.
While the efforts of Dr. Navdanya is laudable I was wondering if reliance on Biological Diversity Act, 2002 is correct to object to a patent being sought to be registered by European Patent Office under European law ? Wouldn’t the rules and laws applicable to European Patent Office have precedence over the BDA in any case..
Additional information about Section 30 (Resercher’s rights) of PPV&FR Act,it shall not prevent any use of any variety registered under this Act by any person using such variety for conducting experiment or research; or the use of a variety by any person as an initial source of variety for the purpose of creating other varieties. The authorization of the breeder of a registered variety is required where the repeated use of such variety as a parental line is necessary for commercial production of such other newly developed variety. How the repetitive use will be known ???? Authority has not adopted/notified any suitable method/process for that.DNA mapping is an option but not an existing practice. In such case, the establishment of repetitive use in backcrossing remains very difficult task.
Not only does Monsanto create toxic products that have been proven to harm humans and animals, but it egregiously abuses the patent system. It’s great news that a number of countries have started to ban the company’s products; I hope the US and all other nations will eventually follow suit.
Upon surveying the prosecution file for EP 1962578 ( CLOSTEROVIRUS-RESISTANT MELON PLANTS), it came to my notice that a communication for revocation of patent was dispatched on March 2nd, 2016. Hence, it is also a matter of time that Monsanto ceases to hold patent over this resistant Melon variety – which is a form of Indian TK.