Journal of Intellectual Property Rights Vol 8, January 2003, pp 9-22

Issues Relating to the Patentability of Biotechnological Subject Matter in Indian Agriculture

R T Gahukar

Plot 220, Reshimbag, Nagpur 440009

(Received 19 August 2002)

In recent years, biotechnology played a major role in advancing the agricultural research in India. Likewise, the farmers’ rights and plant breeders’ rights have received attention of the policy makers, research organizations and development agencies. The recombinant DNA based technology (e.g. genetically modified crops) and trait-genetic use restriction technologies (e.g., terminator, verminator and traitor genes) have been employed as a part of biotechnology by public and private institutions and genetically modified crops are available for commercial exploitation. Considering present social, economical and ethical situation in India, more period would be necessary to avail advantages offered by the GATT/WTO agreement signed by the government although patent laws have been changed under TRIPS regime and quantitative restrictions for agricultural inputs have been removed.

The intellectual property rights (IPR) 1994 that India signed, IPR laws for refer to a group of laws intended to patents, industrial designs, copyright, provide legal protection for an intellectual trademark, trade secrets, geographical creation. Evolution of IPR laws is a indications and protection of plant continuous and complex issue but they breeders’ rights are being executed. provided incentives for technical and Patent is a protection granted by the industrial development in Indian government to an inventor for protecting agriculture and served as effective tools his/her invention for a limited period, for national economic growth. Also, grant thus permitting the holder to control of IPR and their proper enforcement commercial use, sale or manufacture of encouraged fair trade and facilitated the the patented product or process which access of consumers to quality products should be novel, unique, useful and in several ways (e.g. safety to humans ethical, should satisfy the technical tests and animals, product’s price, shelf life of inventions, and is disclosed to the and degradation). public. The ownership can remain with a As per Trade-Related Intellectual founder agency, individual, community, Property Rights (TRIPS) Agreement of public sector or a private company.

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Similarly, “Defensive patents” can be particularly in crop improvement 1,2. The used more effectively in order to prevent most promising benefit from genetic others from patenting the same products. engineering is the use of recombinant Basically, IPR are catalytic in DNA techniques. Because it is possible to encouraging innovation but sometimes break through natural species barriers counter the public interest at large leading systematically by moving genes from one to piracy of the biological resources in the species to another that do not combine in country. Therefore, international nature. The genetically modified (GM) agreements are made. The Indian Patents crops have been developed by using input Act, 1970 & Patent Rules 1972 work traits (e.g. resistance to insect pests and under the framework of the 1883 Paris plant diseases), output traits (e.g. delayed Convention which is administered by the fruit ripening, better taste, nutritious, United Nations World Intellectual elimination of saturated fats in cooking Property Organization (WIPO) to serve oils, elimination of allergens, better the public interests by balancing rights delivery of necessary nutrients), and obligations of the patent holder. This agronomic traits (e.g. resistance to Act was revised through Patent drought, salinity, acidity, flood, etc. and Amendment Bill of 1995 and was increase in crop yield). It takes a decade presented in the Parliament in March or more period to develop technology and 1999, after having incorporated the perhaps one innovation in thousand obligations of the World Trade becomes a successful commercial product Organization (WTO) treaty signed in or process. For example, maize seeds December 1998 and was passed in July with high protein quality (e.g. amino 2002. The recent version includes acids lysine and tryptophan), grass pea updated definitions of inventions, seeds with very low content of neurotoxin uniform patent protection for 20 years, (e.g. b-N-oxalyamino-L-alanin), safeguard of public interest and reserved grains containing higher amount of β- powers to license the production and carotene), mustard oil with low saturated price fixing of the product. In case the fat, and other crops have been engineered patent is broken, an Appellate Board by public and private institutions, and are takes the decision. The Seed Act, 1966, in either advanced stage of development has also been legalized and came into or field testing (Table 1). effect in 2002 by which National Seed The new trait-genetic use restriction Board would replace Central Seed technology (T-GURT) is being employed Committee, and Central Seed as a part of biotechnology by means of Certification Board will maintain a terminator, verminator and traitor genes. national seed register. In this case, users have to rely upon the chemically dependent plants with Biotechnology in Agriculture proprietory genes. Although this In India, biotechnology research and protection restricts unauthorized copying development (R &D) is in progress of patents and monopoly in the

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Table 1— Major institutions engaged in biotechnology research and development for agricultural crops in India

Crop Institution

Fruits Banana Indian Agricultural Research Institute. (IARI), Delhi; Biotechnology Centre, Horticulture Department, Bangalore Indian Institute of Horticultural Research (IIHR), Bangalore; National Chemical Laboratory (NCL), Pune Citrus National Botanical Research Institute (NBRI), Lucknow Mango Biotechnology Centre, Horticulture Department, Bangalore Muskmelon University of Agricultural Sciences (UAS), Bangalore Papaya IARI, Delhi Pineapple Bhabha Atomic Research Centre (BARC), Mumbai

Spices Pepper/chillies Rallis India Ltd., Delhi; Centre for DNA Printing & Diagnostics, Bangalore Cardamom NCL, Pune Turmeric NCL, Pune

Ornamentals Bougainvillea NBRI, Lucknow; NCL, Pune Chrysanthemum NBRI, Lucknow; NCL, Pune Ferns Baroda University, Baroda Gladiolus NBRI, Lucknow; NCL, Pune Orchids IIHR, Bangalore; NBRI, Lucknow

Commercial crops Cotton Central Institute for Cotton Research (CICR), Nagpur & Coimbatore Delhi University; Delhi; IARI, Delhi; NBRI, Lucknow; Dharwad University, Hubli; Maharashtra Hybrid Seeds Company Limited (MAHYCO), Mumbai Sugarcane Sugarcane Breeding Institute, Coimbatore

Vegetables Cabbage IARI, Delhi; Tata Energy Research Institute (TERI), Delhi; Proagro-PGS India Ltd (PGIL), Delhi Cauliflower TERI, Delhi; PGIL, Delhi Potato PGIL, Delhi; IARI, Delhi; BARC, Mumbai; National Centre of Plant Genome Research (NCPGR), Delhi; Central Ptato Research Institute (CPRI), Simla; Jawaharlal Nehru University (JNU), Delhi Eggplant IARI, Delhi; TERI, Delhi; Delhi University, Delhi; (Brinjal) PGIL, Delhi; MAHYCO, Mumbai Tomato PGIL, Delhi; IARI, Delhi; Delhi University, Delhi; JNU, Delhi; Indo-American Hybrid Seeds, Bangalore; Rallis India Ltd., Bangalore

Pulses Chickpea, Pigeon pea International Crops Research Institute for the Semi-Arid Tropics (ICRISAT), Hyderabad; IARI, Delhi; BARC, Mumbai. Contd

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Table 1— Major institutions engaged in biotechnology research and development for agricultural crops in India—Contd

Crop Institution Narcotics Tobacco Central Tobacco Research Institute, Rajahmundry

Cereals Maize MAHYCO, Mumbai; Vivekananda Parvatiya Krishi Anusandhan Sansthan. (VPKAS), Almora Paddy Bose Institute, Kolkata; Delhi University, Delhi; Tamil Nadu Agricultural University (TNAU), Coimbatore; IARI Substation, Shillong;National Research Centre on Plant Biotechnology (NRCPB), Delhi; Directorate of Rice Research (DRC), Hyderabad; M.S. Swaminathan Research Foundation, (MSSRF), Chennai Wheat G B Pant University of Agriculture & Technology, Pantnagar; Delhi University, Delhi

Oilseeds Groundnut ICRISAT, Hyderabad Mustard IARI, Delhi; TERI, Delhi; Delhi University, Delhi; PGIL, Delhi international marketing these The medicinal properties of turmeric technologies have led to substantial (Curcuma domestica Val.), tamarind conflicts between business ethic and (Tamarindus indica L.), neem humanitarian concerns because farmers (Azadirachta indica Juss.) and several cannot save seeds of their crops at the end other plants are well known to Indians of the crop season. It may therefore pose and therefore, Council of Scientific & a potential threat to our food security3,4. Industrial Research (CSIR) could get Likewise, the Consultative Group on back some of the patents previously International Agricultural Research claimed by developing countries5. (CGIAR) has decided not to incorporate Following two examples explain the T-GURT in forthcoming plant breeding patent related technological progress. programmes of international institutions as it may affect the sustainable agriculture due to negative effects on biodiversity Rice ( L.) which is a staple and uncertain effects on socio-economy food in many developing countries is of the country. For example, whether consumed in milled form and lacks in terminator seeds are consumable and safe provitamin A (β-carotene) and iron in its for humans, animals, birds, beneficial endosperm. This diet results in blindness insects and micro-organisms is uncertain; and anemia in humans. Recently, the pre-soaking of seeds in tetracycline Swiss and German scientists developed solution is dangerous to environment and GM rice containing snippets of DNA human health; pollens of plant containing borrowed from bacterium Erwinia terminator gene pollinate and produce uredovora and daffodils that gives a grain seeds that are self destructing. a golden yellow hue and hence

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nicknamed as “Golden rice”. This rice only from India and Pakistan contains vitamin A equivalent to 300 g of though it is patented as Texmati in the cooked rice and 2-fold increase in iron USA and as Jasmati in Thailand. content. Some genotypes with yellow Similarly, new high yielding, endosperm also appear to contain B- photoperiod-insensitive aromatic super carotene levels comparable to those of fine rice strains (e.g. Pusa Sugandha-2, Golden rice. Efforts are therefore on to Pusa Sugandha-3, Pusa RH-10) bred at introduce β-carotene genes into Indian Agricultural Research Institute, indigenous varieties (e.g. IR-64, Pusa- Delhi, will not be marketed Basmati, PR-114, ASD-16), and increase internationally as basmati rice because of its bioavailability. Indian scientists have geographic indication specific to the sequenced 6 million base pairs of chro- region but simply as . mosome II of rice for desired genotype Some risks expressed are that genes for higher productivity and improved from GM plants could be easily taken up quality. Food Standards Agency is now by consumers when eaten and thus proposing an isotope and trace elements become a part of their own genetic make analysis, which can reveal the geographic up. However, experiments on animals fed origin of rice by comparing the unique with large quantities of DNA did not trace elements in it. Drought resistant rice show survival of intact DNA in either is also being developed by the University stool or blood because after digestion, of Hyderabad in association with DNA gets fragmented into small pieces Rockfeller Foundation of the USA by and thus fails to express. The doubt about using molecular and genomic techniques6. transfer of antibiotic resistance gene from Recently, Indian rice in the foreign GM food consumed by people into markets witnessed tough challenge as a bacteria inhabiting human gut and consequence of the decision of the US making them resistant to antibiotics is Patent and Trademark Office (USPTO) baseless. The possibility of gene flow to because this office granted permission on close relatives of transgenic plants 2 Sep 1997 under brand name “Texmati” creating super weeds or causing gene to US-based Rice Tec. Inc. to sell it in the transfer by pollination to other crops is domestic and foreign markets with a label very low because such genes would claiming the product to be superior or at become diluted with successive least equivalent to Indian Basmati 7. generations8. But if seeds remain dormant Therefore Government of India filed a in the soil for several years, it will be petition in the USPTO and subsequently difficult to eradicate them. In order to Rice Tec Inc surrendered four claims in surpass this risk, the Indian Council for September 2000 and 11 more claims in Agricultural Research (ICAR) is currently August 2001. The Rice Tec Inc is mapping the molecular fingerprints of presently selling basmati after developing basmati and profiles about 2000 released its novel lines named BAS-867, RT-117, varieties and parental lines of hybrids and RT-112. The United Kingdom is allowing seeds containing genes for desirable

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traits9.India has also participated to the Technology and Ecology challenging the International Rice Genome Sequencing 1998 field trials and pointing Programme, which was conceived in irregularities, and violations of biosafety 1997, and aims to sequence 10 Mb of laws and guidelines in previous years and chromosomes II of the total 30 Mb rice susceptibility of crop to pests and genomes over the next five years. diseases10. Similarly, ICAR claims that Bt cotton developed by its institutes is Bt Cotton superior to Monsanto cotton because Cotton (Gossypium spp.) is a major multiple pest resistant genes are fibre crop for which >50% of total incorporated in a single variety for which insecticide consumption is meant for this farmers need not to purchase seeds every crop. The misuse of chemicals resulted in year. Similarly, the National Botanical undesirable secondary effects. One of the Research Institute at Lucknow and the probable remedy is to use GM cotton in University of Agricultural Sciences at which Cry 1A (b) and Cry 1 A (c) genes Dharwad, are ready to transfer technology from a bacterium, Bacillus thuringensis to produce indigenous Bt cotton which (Bt) are incorporated. By planting this would be resistant to insect pests cotton, it was expected to reduce 70-80% (Helicoverpa armigera, Spodoptera 11 reduction in pesticide sprays, more litura), ecofriendly and cost effective . photosynthetic efficiency and early In order to test whether plants contain Bt maturity by 2-3 weeks with higher genes, a simple and fast method known as production and better cotton quality than Quickstix has been invented by ICAR. non-Bt cotton. Limited field trials were Some risks, however, are evident such carried out on plots of 200 sq.m. in as, creation of a new or known toxin or Karnataka, Maharashtra, Haryana and allergen from Bt cotton, changes in Tamil Nadu in 1997. The number of trial surface properties that may affect locations was increased to 40 in 1998 interaction between species in any followed by additional 11 field trials in ecosystem, interference with reproduction 1999. Presently, advanced field trials and symbiotic relationship, and crossing have been permitted under the the country or region’s boundary by supervision of the Department of genes. A packet of 450 g of seeds of Bt Biotechnology (DBT). On 26 March cotton and non Bt refuge was sold in 2002, Monsanto-Mahyco Biotech Ltd. 2002 crop season for Rs 1400-1600 (MMBL) got conditional sanction from compared to Rs. 300-400 for the Genetic Engineering Approval conventional seeds. Planting refuge Committee (GEAC) established under the around the main plot is not relevant to Ministry of Environment and Forests for Indian farming conditions because of commercial cultivation of three hybrids fragmented holdings having several (Mech-121, Mech-162, Mech-184) in cotton genotypes in a single farm. The spite of an on-going Supreme Court case bollworms may develop resistance by Research Foundation for Science, through natural selection towards Bt

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sprays. Lot of regulation is involved in example, the bright red Byadgi chillies, releasing these hybrids such as, the sour Appimidi mangoes and salt Institutional Biosafety Committee, resistant Kagga strains of paddy in Biotech Food Approval Committee, Karnataka, Pattambi paddy resistant to Review Committee on Genetic brown planthopper in Kerala. Such local Manipulation, and Monitoring cum cultivars had been useful as parents in Evaluation Committee, State Biotech breeding programmes to incorporate their Coordination Committee, and National qualities. But through Green Revolution Bureau of Plant Genetic Resources. in late sixties, we have replaced land races and traditional varieties by high Biodiversity yielding hybrids resulting in at least 5% Diversity is deemed important for gene flow in self pollinated crops and up national food security by enhancing crop to 50% in cross pollinated crops. The productivity and quality of the produce. recent technique of DNA fingerprinting India being a home of 45, 000 plant of plant varieties would protect India’ species an exchange between wild and genetic resources and can establish cultivated plants is a continuous and profiles of origin of the genetic material dynamic process and acts as a gene flow. in the event of award or patent dispute. By this way, biodiversity is naturally The recent technique of DNA maintained if human intervention is fingerprinting of plant varieties would be avoided. This system also helps to useful to protect India’s genetic resources maintain and enhance genetic resources and to establish profiles of origin of the in farmers’ fields12. On the contrary, there genetic material in the event of award or are expected side effects and possible patent dispute. danger to our biodiversity by using At the 1992 UN Conference on transgenic crops13,14 because new gene is Environment and Development, a introduced in an agro-ecosystem Convention on Biological Diversity was irrespective of boundaries. Allowing IPR agreed upon to promote both means loss in biodiversity conservation conservation and utilization at three activities of peasant farmers 15,16 because levels, e.g. ecosystems, species and genes they retain best seeds of previous crop and international working groups on season and plant them as per family needs biodiversity are working on the following in highly variable environment taking all issues: risks of natural calamities. This system assures farmers the minimum crop 1. WIPO Committee on legal standards production and whole family survives on for patent protection for inventions in these food sources and thus forms a part biotechnology. of sustainable agriculture, which is 2. Licensing related to IPR in today’s need. Also, farmers are biotechnology. cultivating several plants since decades 3. Administrative and procedural and help in maintaining biodiversity. For improvement in delivering patents.

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4. Relationship between patents and interaction between a wide range of plant other IPR such as, plant variety and animal species in diverse ecological protection, trade secrets, geographical zones. Farmers did efforts for indications. improvement by crossing different 5. Moral and ethical concerns such as, cultivars, saving seeds from spontaneous inventions involving genetic mutation, and by collecting cultivated and alterations of plants and animals, uncultivated relatives of agricultural preservation of environment, crops. These techniques proved to be protection of animal and human useful to provide: (i) resistance or health by introducing criteria such as, tolerance in plants to the attack of pests, bio-safety, biodiversity, food diseases and environmental stress, (ii) security, sustainable agriculture etc. specific culinary and nutritional qualities,

As per Article 3 of the Indian Patents (iii) raw material for agro-industries and Act, 1970, any form of intellectual biotechnology projects. But in recent property in biodiversity is not recognized. years, genetic diversity declined sharply But as per Article 27 of the TRIPS due to introduction of modern high proposals, biodiversity cannot be yielding hybrids and synthetics, which do excluded from IPR control. On the not always perform well in small farms, contrary, it extends patents or other IPR compared to local cultivars unless inputs related to plant, animal and are applied (e.g. fertilizers, pesticides, microorganisms. Being a signatory in the irrigation). When a farmer is unable to WTO agreement, government drafted an supply these inputs, he/she may face high Indian Biodiversity Act through National risk of crop failure or low productivity. Biodiversity Bill 2002, which would be Under such financial crunch, farmers introduced in the Parliament; a National should be able to plant cultivars adapted Biodiversity Authority is being set up at to specific agro-climatic zones and socio- Chennai in order to follow the guidelines economic situation (low or without of the WTO convention that India has inputs). After having studied the peasant ratified along with 175 other countries. farmers’ fate, the Food and Agriculture Thus, patented biodiversity innovation Organization of United Nations (FAO) available in the country enhanced the co- resolved in the conference held in 1989 operation between Indian and foreign that farmers should be allowed to derive companies. benefits from the improved breeding and IPR through protection of farmers’ rights. Plant Genetic Resources The new Farmers’ Rights Bill has been

Farmers’Rights proposed by central government through The plant genetic resources (PGR) which National Gene Fund would be always existed at the intra-species level in created and the National Bureau of Plant farms and forests, and as wild species. In Genetic Resources has been established at reality, 80% of the cultivated area is Delhi where seeds of indigenous cultivars covered by small farms characterized by of all crops are stored in the Gene Bank.

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Plant Varieties Rights or Plant be encouraged18. The 1991 revisions to Breeders’ Rights the convention of the International Union Several exotic plant species imported for the Protection of New Varieties of in India were crossed with local or Plants, 1961 (UPOV), extend PBR improved cultivars to increase the crop protection from the propagating part of production 17 . These new cultivars having the plant to all material derived from the narrow genetic base have also been used protected variety to the extent that if a extensively in breeding programmes protected gene is found in another resulting in the reduced level of variation variety, whether by deliberate or acciden- within plant population. Last year, tal crossing or natural introgression, the following the recommendation of the patent holder can claim over the resulting Parliamentary committee, Protection of variety. In India, private companies are Plant Varieties and Farmers’ Rights Act making large investments in crop breed- 2001 was introduced to protect plant ing programmes, particularly for creating varieties either by patents or through an GM crops due to global trend towards effective sui generis system or by any commercialization13. By this way, they combination thereof. This Act provides safeguard their investment through IPR legal rights to farmers to save, use, for their inventions. But this system exchange or sell their seeds and encourages monopoly resulting in higher stimulates plant breeders to improve crop cost of these seeds for each crop to be performance. The authority registers new purchased each year by farmers. variety and ensures fair and equitable benefit sharing or financial compensation. IPR: Status and Repercussions Since farmers play a vital role in IPR has a substantial impact on conserving local ecotypes and can biological diversity, plant genetic develop new strains through selection and research and human welfare in long term. breeding, they would have the same After having studied the status of the rights as any professional breeder. genetic resources and community rights, In order to avail the plant breeders’ the World Food Summit organized by rights (PBR), varieties have to be FAO in June 2002 cautioned about the genetically distinct from the existing use of GM crops. In India, the Ministry of ones, sufficiently homogeneous and Human Resources Development has stable, and must not have been embarked a campaign to educate public commercialized. Plant breeders can use about IPR in the context of globalization the exotic material for crossing with and would host the global depository for locals. For this purpose, breeding microorganisms at the Institute of techniques of in vitro pollination, in vitro Microbial Technology, Chandigarh. fertilization, in vitro mutagenesis, in vitro Ownership of genes and need for selection, exposing somaclonal variability patents is currently under ethical debate for increasing diversity, adding or because exotic genes have entered into deleting selective plant genes etc., need to Indian crop varieties through

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conventional breeding and it would be necessary amendments in the Articles 7, 8 difficult to trace their origins19. Labelling (1 & 2), 27, 29 (1), 34 (1), 40 (1 & 2) for of foods from GMC has been compulsory a middle course of action balancing in developed countries but in Indian TRIPS with our national interests. To context, there is no public awareness on facilitate the clearance of biotech this issue20. This implies to integrate the products, the national task force of the risks and opportunities associated with Confederation of Indian Industry has GM foods into general food supply of the proposed a single window agency at DBT country. Constitution of food security as Indian companies have to go through norms will facilitate higher-level elaborative and complex regulatory protection and codify provisions that process for approvals. This task would already exist in the WTO agreement. include delivery of information, Bansal21 explained major steps consultancies, resources, trademark and involved in filing a patent in India. patent searches, legal advice, patent ThinkGen, a bio-information company drafting, filing, copyright opinion, based in Bangalore, has also an in-house technology and business expertise. The IPR and patent cell. Total time for grant Intellectual Property Management of patent is 5-6 years and is valid for five Division of CSIR organizes programmes years from the date of sealing or seven on awareness and planned to have years from the date of filing whichever is electronic database on Indian herbs, to shorter. Since 1995, the Patent translate ancient literature and provide Facilitation Cell in the Department of this information to public through Science & Technology, Delhi provides electronic media and publications. The patent information to public. The Patent Ministry of Commerce & Industry, Govt. Information Office, Kolkata and its of India, also established an Intellectual branches at Mumbai, Delhi and Chennai, Property Training Institute at Nagpur provide guidance, awareness, on line (Maharashtra) in August 2002. Similarly, patent search on Internet and issue DST is associated with >50 countries by application forms. At international level, international collaborative agreements. Patent Cooperation Treaty (PCT) was While considering the Environment concluded in 1970 and modified in 1984 Protection Act 1994, India has taken up with objective to facilitate filing of initial steps to set up the Traditional applications. India is also a member of Knowledge Digital Library on traditional PCT from December 1998. One can now wealth, medicinal plants, etc. in a digital file a single application for patents in form in accordance with the international several countries but each country gives format to facilitate diffusion of grant individually. information. Krishnamurthy22, and Varadachari & Joardar23 suggested certain steps Future Needs considering the difficulties and prospects Multidisciplinary linkages within of IPR in biotechnology and proposed public and private institutions may be

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established. Such partnership has shown friendly and economically viable growth excellent results in the USA and China. in crop productivity and consequently in This model can therefore be adopted in sustainable agriculture. Since there is India. The government has now provision in Article 253 of the recognized the importance of IPR and constitution, recently the Parliament need for motivation to transfer the accorded the implementation of this technology for commercialization, to system within its legal powers. reward the innovators through Available information on PGR and encouragement for updating R & D, and traditional plant products needs protection for building competence on IPR and by the way of legislation and national 24 related issues . Some issues like policies for social and developmental cultivation of GM food crops including benefits and for encouraging farmers and vegetables, oilseeds, fruits and cotton youth for biodiversity protection25. need to be studied from the point of view Cultivars affecting socio-economic and of additional benefits to farmers through ethical issues must be banned completely value addition of pesticide residue free (e.g. terminator gene). In fact, foreign crops. This impact will be clear only after companies introduce exotic varieties with the transfer of biotechnology into fields a narrow genetic base, and do not initiate and its large-scale adoption by farmers. production of local varieties. So, there As India is facing a threat of rapidly should be patent protection through growing human population and reduction compulsory licensing but informal in agricultural resource base, innovation (without IPR) may be allowed biotechnology must be judiciously in needy research areas. On this basis, deployed. The Government should ensure plant breeders should agree with farmers continued safe and effective testing and development agencies if patented before introducing GM crops, and variety is used in R & D activity. At regulatory network to inspire public present, seed companies are dominantly awareness and confidence. Public debate present in the Indian market. There is no and participatory approach on the impact mechanism to protect the innovations of of technology on environment, biosafety, farming communities and to compensate sustainability and food security is them if any new variety fails to essential if GM crops are to be accepted germinate, it is not eco-friendly and its by the farmers and consumers. The World produce is hazardous to health. As such, Food Summit organized by FAO in June any company releasing its variety must 2002 recommended a temporary ban on compensate farmers if economic loss is GM crops after having studied the status incurred from adopting such varieties. of the genetic resources and community These guidelines are not available to rights. share the benefit between development Protection is better via trusts rather institutes and basic plant material donor. than patent owners. This system would The Government and citizens should encourage, on community basis, an eco- come together to protect the knowledge

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of our traditions from unethical Ex situ conservation of seeds has perspectives. It is often difficult to check resulted in some loss of viability and unscrupulous patenting on traditional characteristics. Therefore farmers should knowledge and patenting of plants from be encouraged to conserve traditional their place of cultivation because varieties on their farms. This system documentation, validation and recogni- would create gene banks that may be tion of traditional knowledge, geogra- diversified and established at least at phical indications, PGR etc. is lacking district level so that plant material would and the present Patent Act does not allow be easily available to farmers who can patenting of products per se. develop their own varieties. As patented variety would restrict the flow of For naturally occurring genes and for acceptable and adapted variety to farmers, free exchange of germplasms, patent domestic patent and IPR legislation becomes illogical and hindrance because should include provisions to maintain patents restrict creation of new varieties “Farmers’ privilege” in order to allow and access to a common pool of PGR. farmers to plant saved seeds in successive Any variety cannot be developed or seasons. This system provides them the maintained for local distribution by re- incentives for biodiversity conservation. sowing the seeds saved from the harvest Indian economy is linked with import of a protected variety without permission and export of essential goods. For and without paying royalty. Adequate example, export duty on cotton is being legislation to protect local cultivars, right increased by Multifibre Agreement, of farmers over biological resources, which would affect industries and biosafety, conservation of germplasms, extension activity due to patent protection development and preservation of value - and policy of “Minimum Support Price”. added products from plants, animals and The is nearly eight times costly in the international market but the micro-organisms, is urgently needed by country imposed a prohibition on rice incorporating the spirit of Article 22, 23, import to offer higher price to farmers. 24 of Section 3 of TRIPS chapter of the Indian government has to take necessary WTO/GATT agreement. Biopiracy is on steps on these lines. Our export-import increase day-by-day and difficult to check policy needs boost through export zones with present laws because patents are and by establishing Biotech Parks with based on DNA sequences. The diversified primary processing facilities; marketing legal system in transnational co-operation infrastructure and recent information on may also lead to colonial exploitation, export rules. Of course, priority should be which is often termed as accorded to growers in economic “biocolonization”. Persons involved in consequences of marketing. unlawful affairs should be severely punished and heavy penalty should be Conclusions levied upon them if they don’t respect There is an urgent need of an alliance laws or interpret laws in their favour. between: (i) private and public sectors,

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(ii) global giants and Indian firms, and Concerted and collaborative efforts (iii) industry and academia to improve have to be established in near future to existing technology, identify appropriate ensure close linkages among all biotechnology for adaptation and transfer, concerned so that green revolution is to locate patent owners or competitors changed into evergreen revolution by and fix the areas of investment. means of genetic engineering and other 27 Moreover, huge potential of the biotech biotechnology sciences and considered projects in agriculture cannot be tapped as a challenging tool and opportunity for unless the industry changes its model improving the living standard of both 28 from service to product. For example, urban and rural populations . These China has been able to seek 9000 patents challenges are to be accepted with rigidity against only 3500 in India. The scope for and commitment as there is enough scope IPR and patents should be envisaged in to pursue the development and extension the forefront disciplines particularly the work in biotechnological subject matter.

genetic engineering, though patents are Acknowledgement relatively costly. Author thanks Dr P V Khandekar, Biotechnology is an advanced step in Professor (Retd), Nagpur, for his valuable science but socio-cultural problems have suggestions. to be considered as India has ancient basic ethics and religious customs. New References 1 Charak K S and Sharma M, Biotechnology in research in these domains is welcome and agriculture: Challenges and opportunities, public has to be adequately informed Indian Farming, 51(8) 2001, 10-16. about the biotechnological progress26. 2 Gahukar R T, Biotechnology in plant Existing knowledge and new protection. Pesticides Information, 24(1) 1998, 13-18. technology systems may be employed 3 Kumar B and Bhat V, Traitor technology: A together in a decentralized and threat to national food security, Current participatory approach for better Science, 77, 1999, 844. 4 Singh A K, Terminator seeds and their development. Because formal implications: Issues ahead, Indian Farming, (laboratory) and informal (farmers’ 48(9) 1998, 13-16. fields) sectors may contribute 5 Karki M M S, Neem-based natural product substantially to maintain genetic and innovations: Analysis of patents, Journal of Intellectual Property Rights, 6, 2001, 27-37. biological diversity otherwise erosion in 6 Babu R, Selvakumar G and Gupta HS, Bio- biodiversity will continue until fortified foods: A genetic avenue for commercial agriculture through intensive nutritional security, Indian Farmers’ Digest, practices will expand. There are political 35(8) 2002, 13-18. 7 Chakraborty D and Chakraborty A, Biopiracy and economic issues pertaining extension hits Indian basmati, Agriculture Today, 5(3) of the IPR to plants and their genetic 2002, 49-51. components, and farmers’ contribution to 8 Khanna V K, Genetically modified foods: Their need, safety and acceptability in the development and conservation of the Indian market, Indian Farmers’ Digest, 35(8) genetic resources remained unrewarded. 2002, 11-12.

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