NSAI Writes to American Ambassador; Calls for Stringent Action Against Monsanto

On this Blog, we have extensively covered the Bt cotton saga involving Monsanto and Indian seed companies [see here, here, here, here and here].

The Indian seed companies have been represented in this legal struggle principally by the National Seeds Association of India (NSAI) whose strategy, aimed at freeing the commercializing of Bt cotton from the shackles imposed by Monsanto, was explained by Prashant with remarkable lucidity here.

To briefly recapitulate, the NSAI argues that, while no one can cavil at the proposition that Monsanto owns patents over the gene that it inserts into cotton seeds, it does not, and indeed cannot, own any patents over the resulting genetically modified (GM) cotton seeds in light of the statutory embargo engrafted in Section 3(j) of the Patents Act on the patenting of plant life.

Consequently, whatever rights Monsanto has over GM cotton that is developed through the introgression of the Bt gene, the NSAI argues, must, of necessity, flow from the Protection of Plant Varieties and Farmers’ Rights Act (PPVFRA) and not the Patents Act.
In light of this, the NSAI has urged the Genetic Engineering Appraisal Committee (GEAC) and the Review Committee on Genetic Manipulation (RCGM) to dispense with the need for seed companies to obtain an NOC from Monsanto in order to commercialize GM cotton seeds.

As a part of this strategy, the NSAI recently wrote a letter to the American Ambassador to India, Richard R. Verma, urging him not to condone Monsanto’s actions and to take all the steps that are within his power to ensure that Monsanto is duly punished for its illegal conduct.
In its letter to the Ambassador, the NSAI broadly makes 3 principal claims.

First, in accordance with the TRIPS agreement, the NSAI argues, the Indian IPR Policy does not envisage patent protection for plants and seeds, so legal protection for the same can only be obtained under the PPVFRA. This being the case, Monsanto has no patent rights over Bt cotton in India, and its assertion before Indian courts to the contrary cannot be countenanced.

Second, as a part of the PCT process, when Monsanto filed its application for the grant of a patent in India, the NSAI claims, it was asked to drop the claim relating to plants or seeds. Only after Monsanto agreed to amend its claims, the NSAI contends, was the patent granted, thereby indicating that Bt cotton seeds do not fall within the ambit of the patent.

Third, Monsanto is the beneficiary of a loophole in the regulatory architecture governing the commercialization of GM seeds, inasmuch as it is taking advantage of a stipulation under Indian law in accordance with which authorities such as the GEAC and the RCGM require Indian seed companies to obtain a letter of confirmation and NOC from Monsanto before commercializing Bt cotton. Once this provision is done away with, Monsanto will no longer play a meaningful role in the commercialization process.

The NSAI’s move seems to have been motivated in large part by the fact that the American ambassador wrote a letter to DS Misra, a secretary in the Ministry of Agriculture in August, and to Nripendra Misra, a principal secretary in the PMO in June, supporting Monsanto’s version of events.
Therefore, the key reason underpinning the NSAI’s decision to write this letter appears to be its desire to disabuse the Ambassador of the notion that the Government’s attempts to regulate the price of Bt cotton are legally untenable.

While I have not been able to get my hands on the letters that were written by Ambassador Verma to the Government, it would be safe to assume that he has urged the government to refrain from taking price control measures that have operated to Monsanto’s detriment thus far.
Given the Ambassador’s condemnation of these measures, there is a high likelihood that they will find a mention in the US Trade Representative’s next Special 301 report.
The Special 301 Report, which was initially designed with the laudable object of ensuring that all of the US’ trading partners abide by a set of uniform and robust trading norms, has now emerged as an instrument of economic coercion against developing countries such as India, as we have noted on this blog here, here and here.

To be sure, as I have argued on this Blog, I believe the Government’s sporadic attempts to regulate the price of Bt cotton are emblematic of the ad hoc and unprincipled way in which policies having far-reaching significance are formulated in India. The demonetization scheme is the most recent example of this deeply worrying trend, as Harish Narasappa argues.

Therefore, while one can appreciate Monsanto’s desire to solicit the American Ambassador’s intervention in order to ensure that it is able to function in a more predictable and stable legal regime, I am not sure if it was appropriate for the American Ambassador to get involved in this controversy.
In light of the fact that the government’s policies have been challenged in courts across the country and are currently the subject matter of judicial scrutiny, the fact that the parties have decided to make the American Embassy, as opposed to Indian courts, the site of their contestations speaks volumes about their faith in India’s judicial system.

This is not the first time that an ambassador has been dragged in an IP controversy; readers will recall that Pfizer had written a letter to India’s Ambassador to the U.S., S Jaishankar, in 2014, complaining about the misuse of Indian IP laws in ways that undermine the interests of pharmaceutical manufacturers.

What makes this development all the more troubling is the fact that, as Prashant has noted, the NSAI’s claim about Monsanto’s patent being hit by Section 3(j) rests on a tenuous legal footing.
Therefore, one only hopes that the American Government will not jump to any conclusions on this issue, one way or the other, before the controversy is put to an end by definitive court rulings.

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