- Biological Inventions
- Brand Valuation
- Copyright Infringement
- Copyright Litigation
- Digital Right Management
- Educational Conferences/ Seminar
- Hi Tech Patent Commercialisation
- Hi Tech Patent Litigation
- Intellectual Property
- IP Commercialization
- IP Licensing
- IP Litigation
- IP Practice in India
- IPAB Decisions
- Legal Issues
- News & Updates
- Patent Commercialisation
- patent infringement
- Patent Licensing
- Patent Litigation
- Patent Opposition
- Pharma- biotech- Patent Commercialisation
- Pharma/Biotech Patent Litigations
- Section 3(D)
- Trademark Litigation
Assume for instance that a farmer buys, say, a mix of “soya seeds” from a local grain elevator, and sow them. Later, it turns out that, the undifferentiated mix of seeds also contained “Patented Genetically Engineered (GE) seeds”.
Will it be an act of infringement???
For centuries, farmers have saved seeds from season to season and re-planted the saved seeds later in the season. An American company Monsanto has challenged this ancient practice.
Biotech Industry Giant, Monsanto, had developed GE seeds that are resistant to its own herbicide (roundup), which farmers spray on fields to control weeds while their crops are protected from the death-dealing effects of a tiny, patented gene. Monsanto was allowed to patent the seeds. So now the giant has control over both the crops and the weed killers. Till 1980, The United states patent and Trademark office had refused to grant patents on seeds, viewing them as life forms with too many variables to be patented. Then USPTO granted patent to a live human made micro organism (Pseudomonas bacterium) developed by a General electric scientist to clean up oil spills. Monsanto applied taking advantage of the development and applied common sense for patenting life forms based on minor changes in genetic structure and took over 70-90% of the global seed market. He then applied prohibitions for the re-use of “now patented technology” for further commercial use.
Monsanto filed 144 lawsuits against family farmers and settled 700 cases out of court between 1997 and 2010. The Lawsuits target farmers who used Monsanto seed but violated the licensing agreement, and also those farmers who never had intension of growing GE plants. This answerers the above question. So, now for the first time in history, if a pollen grain or seed of GE crop, trespasses on to a farmers property, due to blow of a wind or a truck passing by in high speed, would lead to “genetic (GE) contamination”!!
OSGATA et al. vs Monsanto deals with the “GE contamination” and represents 31 farmers, 13 seed selling businesses and 31 agricultural organizations that represent more than 30,000 individuals and 4,500 farms. They had originally filed the case on March 29, 2011 and after the dismal of their case by the District court of New York in February 2012, they appealed in the Appellate Court, Washington DC. The Oral argument was herd in January 10 2013.
The conventional farmers are scared for even planting the crops which are also genetically modified by the biotech firm, as if found contaminated would be sued for infringement.
But what is causing Monsanto of this exploitation?? The cause may be the selling of GE products not labeled. Monsanto learned their lesson in Europe and Asia that customers won’t buy their GE crops when labeled. In America the company and their allies have spent millions to defeat the local labeling initiatives. So, when conventional farmers are out of the way, America has no choice to buy labeled products or unlabeled products. Monsanto was under investigation by the Department of justice for violating anti-trust laws by practicing anti-competitive activities towards other biotech companies, but the investigation was quietly closed by the end of the year 2012.
All this leads to one solution it seems: People of America should boycott any product made with corn, soya, sugar, canola, cotton or alfalfa (including milk as diary cow’s eat alfalfa) unless there is a certainty that it was made without any genetically modified seed (as the GE products are labeled in America). Second, a set of a term for licensing or assignment for the allowing re-use of patented GE seeds with some agreed royalties should be applied rather than buying the fresh patented seeds by farmers again and again.
The GE crops have also affected the Indian farmers. Various NGOs are blaming the suicides of Indian farmers to be due to the indebt by Monsanto’s GE seeds. Recent update being that Monsanto is controlling 95% of GE Cotton seeds supply, which are sold by the firm by the name of BT Cotton seeds. Due to which the price have jumped almost 80 percent.
India has been among the first countries in the world to pass a unique law to protect both the rights of breeders and farmers, by passing the legislation granting farmers right in the form of Protection of Plant Varieties and Farmers’ Rights Act, 2001. As per under section 3.5 of the Plant Variety and Farmers’ Rights Act, 2001 of India, the farmers have the Rights to seed. India’s Act aims to give farmers the right to save, use, exchange or sell seed in the same manner he/she was entitled to before the Act. However, the right to sell seed is restricted in that the farmer cannot sell seed in a packaged form labeled with the registered name.
But the difference between a genetically modified crop to the crop modified due to breeding has not been applied or understood. Genetically modified crops are plants, with DNA that has been modified using genetic engineering technique, which are then used in agriculture, whereas, selective breeding is less scientific and a much older technique where a breeder nurtures the useful traits in crops. They are completely different and should be dealt differently too.
About the Author: Ms. Shailee Gupta, Woman Scientist, TIFAC Trainee at Khurana & Khurana and can be reached at: firstname.lastname@example.org
Follow us on Twitter: @KnKIPLaw