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Dr. Vandana Shiva, an Indian Environmental Activist has lent her support to “No Patent on Seeds”, a European coalition, in opposing the European Patent EP1962578 granted to Monsanto in May 2011. The Patent claims a melon variety having resistance to Curcurbit Yellow Stunting Disorder Virus (CYSDV) with virus resistance traits taken from melon varieties found in India.
The opponents seek complete revocation of the Patent and contend that the Monsanto invention uses conventional breeding methods of crossing and selection to create the new resistant varieties and further contend that this is “bio-piracy” and not invention. The Indian variety has long been registered in international seed banks (PI 313970). The Patent, if granted, could block access to breeding material which inherits genetic conditions that confer resistance.
Article 53(b) of the European Patent Convention (EPC) excludes patents on plant varieties and on essentially biological processes for the breeding of plants. The opponents allege that claim 1 falls under the exemption of Art 53(b) which excludes patents on breeding that are based on crossing and selection.
The opponents also cites the precedent set by EPO on interpretation of the Article 53(b): the two 2010 decisions G2/07 and G1/08 on Broccoli and Tomato varieties respectively, wherein it was decided that the biological processes for “breeding plants are only patentable under the EPC if they comprise steps which materially alter the breeding procedure such that the resulting plants are not obtained by simple recombination of the parent genomes”, in other words it was decided that the conventional breeding could not be patented.
The opponents further argue that the invention is not patentable under under Art 53(a) of the EPC, as being contrary to morality and public order. Dr. Vandana Shiva from Navdanya accuses the patent to violate the Biological Diversity Act and the Plant Variety Protection and Farmers Rights Act. Navdanya is a network of 500,000 seed keepers and organic farmers in India.
The Biological Diversity Act, 2002 was enacted pursuant to Convention on Biological Diversity (CBD) to which India is a signatory.
According to Section 6 of the Biological Diversity Act, 2002 it is mandatory to seek permission from the National Biodiversity Authority (NBA) for applying for a patent in or out of India over an invention based on biological resources obtained from India. The Section 6(1) says,
6.(1) No person shall apply for any intellectual property right, by whatever name called, in or outside India for any invention based on any research or information on a biological resource obtained from India without obtaining the previous approval of the National Biodiversity Authority before making such application.
Provided that if a person applies for a patent, permission of the National Biodiversity Authority may be obtained after the acceptance of the patent but before the sealing of the patent by the patent authority concerned
Monsanto clearly did not seek approval from the NBA in using Indian melon varieties in developing the alleged new melon variety, and thus could be proven to be a case of bio-piracy under this Act. The opponents further stresses that the duty to implement such measures is already part of the CBD itself (Art. 15.7). Therefore they allege the patent to be against the public order.
The opponents further seek patent revocation on grounds of lack of inventiveness under Article 56 of the EPC and lack of sufficient disclosure and clarity under Article 83. They allege the patent does not describe successfully how to breed a new melon which is resistant to CYSDV.
The “No Patents on Seeds” coalition is supported globally by over 300 NGOs and farmers’ organisations, and has collected about 100000 signatures against patents on plants and animals. The coalition urges the institutions of the EU for revision of European Patent Law to exclude breeding material, plants and animals and food derived thereof from patentability.
The opponents rightly fear the blockage of the access to breeding material which inherits genetic conditions that confer resistance if the patent is not revoked. The breeders’ and farmers’ communities of India and the world eagerly wait for the decision of the EPO.
About the Author: Ms. Meenakshi Khurana, Patent Specialist at Khurana & Khurana and can be reached at: firstname.lastname@example.org