Overlaps in IP Patent Plant Variety Protection

The Seed(y) Saga: Who Makes Law in India?

he-who-makes-his-own-lawWell, if Prabhakar Rao’s response to my op-ed in the Hindu is anything to go by, it would appear that is the executive (govt) that makes law in India. Never mind that the constitution says otherwise; and vests this power with our Parliament!

Mr Rao clearly has his own constitutional handbook, drawing from which he notes:

“As clarified by the government in the IPR Policy 2016, only the PPVFR Act, 2001 governs IP rights for transgenic varieties.”

Firstly, whatever be its other flaws, the IPR policy makes no such “clarification”! And if perchance it did so, it would be blatantly wrong and unconstitutional! Not to mention “ineffectual”, given that a mere government policy document (with no force of law) cannot trump a validly enacted law by Parliament. There is nothing in the Plant Variety Protection Act (PPVFRA) to suggest that it trumps the Patents act: rather both regimes co-exist as I’ve noted in the Hindu op-ed (relevant portions extracted below):

“Monsanto’s patents cover various components of the technology embedded in the donor seeds handed out to seed companies (the new man-made transgene, the DNA construct and the method of creating the new cotton genome). Any seed company that uses this donor seed and creates a new plant variety is entitled to register such variety under the PPVFRA.

This new plant variety registration, however, does not extinguish Monsanto’s upstream patent rights. Neither does the patent right override the plant variety protection. They co-exist. As such, seed companies cannot commercialise their hybrids without a patent licence from Monsanto, in much the same way that Monsanto cannot sell or distribute these hybrids without permission from the seed company. If Monsanto refuses to licence the seed companies, they can move for a compulsory licence (CL) under the Patents Act, provided they satisfy the terms of Section 84, which states that a CL could be granted if the patented invention is exorbitantly priced or not available in reasonable quantities to the public or is not being worked in the territory in India.

But this licence application has to be under the terms of the Patents Act, and not the PPVFRA. Given this clear-cut demarcation, one wonders what the legal fracas is all about!

Unless of course one were to invalidate Monsanto’s patent. If news reports are to be believed, there are pending invalidity proceedings before both the IPAB (Intellectual Property Appellate Board) as also the DIPP (Department of Industrial Policy and Promotion).”

I’m not sure what is more worrying: Mr Rao’s recklessness in issuing a blatantly false statement on India’s IPR policy 2016. Or his blind faith in the ability of our government to trump Parliament (no pun intended!) when it comes to law making. Perhaps his relative success so far (in getting government agencies to formulate favourable regulatory norms sans any public consultation) may have led to this dangerous belief that the government can get away with anything.

As I noted in the Hindu editorial:

“Whatever be our personal predilections against GMOs, it is a matter of deep concern that government agencies appear to be flouting the rule of law with impunity. While there may be merit in regulating GMO patents, this must be done after following due processes under the law, through the relevant competent authority (such as the Patent Office), and not through abusive law-making designed to seemingly favour one set of stakeholders who are essentially engaged in a private commercial dispute.”

Conclusion: Whither Rule of Law?

These seed wars are a true test of how vibrant we are as a democracy…and how committed we are to the rule of law. Will we sacrifice rule of law at the alter of political expediency? Justice Holmes had once remarked that: “The life of the law has not been logic; it has been experience.” Perhaps we ought to change this to: “The life of the law has not been logic; but expedience!”

We may cheer now given that this is Monsanto, a corporation we love to hate! Will we continue to cheer when the same rule of law is given a go in other spheres that we hold close to our heart, such as free speech and the like. Where the government bans books, beef and television for a day! Surely vesting the government with arbitrary power will mean that it cuts both ways: we can’t pick and chose where they will exercise that power! Or put another way, what’s sauce for the goose will always remain sauce for the gander.

In the end, we must pledge our commitment to a process that is fully transparent, neutral, reasoned and conforms to basic constitutional values. Mr Rao’s war against Monsanto reveals a tenacious fighter, blessed with immense reservoirs of daring, drive and determination. But he must be persuaded to commit himself to the rule of law, whether he likes it or not. After all, in theory at least, we’re more of a mango public and less of a banana republic!

ps: Image from here.


Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.


  1. DON

    Although, there is a doctrine of separation of powers in place, but there are observations that executive has tried to exercise beyond power vested to them, laws will decide correctness or in-correctness of observations, if raised Eg. An attempt to regulate patent technology is one example of this.

    It was observed that wherever there is a mention in provisions of Act/ Rules about the text “in consultation with Central govt”. Such consultation is influenced most of time. Eg. Appointment of a person in PPV&FR Authority( earlier and now) is an example of this. Such consultation has totally ignore public consultation and arrested the transparency expected by the public.

    I hold clear view that both the Patent Law and PPV&FR law co-exist. Unfortunately, misinterpretation of this and many other PPV&FR Act/rules provisions are being issued from time to time for the personal interest (most of time, rapped as industry interest).
    Further, PPV&FR Act has not interpreted the term royalty in correct sense whereas it has just equated with “benefit” and asked percentage of it as Annual fee. If it is interpreted correctly then, An authority has no right to seek percentage of Royalty which is the direct claim of an applicant/develop in many IPR laws also.

  2. Anon1

    Transgenic plant technology clearly is a subject matter for patent protection and it is immature to say the least that transgenic plants only come under the purview of PPV&FRA.

  3. Sunita K Sreedharan

    Clear and concise write-up Shamnad. The Patents Act and the PPVFRA are very clear wrt the rights of innovators. I am surprised at the Government’s stance.


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