Monsanto (bt cotton seeds) to be Unpatentable
Monsanto Technology LLC and Nuziveedu Seeds Ltd had entered into a sub-license agreement under which the former sold seeds to the latter. In turn, Nuziveedu had to pay royalties for the use of such donor seeds. Nuziveedu claims that Monsanto’s invention is nothing but a “transgenic plant” with increased insect resistance and that the same could be protected as a “plant variety” under the Plant Variety Protection & Farmers Rights Act, 2001 (PVPFRA). If Monsanto’s patent is interpreted as claiming a plant or plant variety it would mean that the patent would have to be struck down for violating the statutory prohibition against patenting plants and plant varieties under Section 3(j) of the Act. Although “plants” and “plant varieties” are not patentable under the law, it is possible for private parties to claim monopolies over “plant varieties” under the PVPFRA, which is a sui generis legislation. It is important to understand that only plant varieties and not plants can be protected as monopolies under the PVPFRA. Similarly, in the case of cotton, while seed companies cannot claim a monopoly over the cotton plant per se, they can certainly claim protection over individual varieties of the cotton plant of which there are several.
If Monsanto’s invention is construed as being over a micro-organism, there is simply no case of benefit sharing because the benefit sharing provisions extend only to plant genetic material and not genetic material belonging to micro-organisms. So, the entire issue circles back once again to claim construction and identifying the soul of Monsanto’s patent. Delhi High Court on Tuesday rules in favour of Nuziveedu Seeds Limited in Monsanto Technology’s plea against Nuziveedu Seeds alleging that the Nuziveedu selling BT cotton seeds using Monsanto’s patented technology even after termination of licence.
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