Eligibility and patentability of inventions are two different connotations. Article 27 of TRIPs Agreement deals with patentable subject matter. Section 3 of the Indian Patent Act, 1970 deals with inventions which are not patentable. Thus, on one hand we have the inventions which are patentable if it fulfills the basic condition of novelty, inventive step and which are capable of industrial application as per Article 27 (1) of the TRIPs Agreement subject to certain exceptions. On the other hand, Article 27 (1) provides for certain exceptions whereby even if the invention fulfils all the aforesaid three criteria of novelty, inventive step and industrial application, it can be excluded from eligibility for grant of a patent. These exceptions are contained in paragraph 2 and 3 of the Article 27 as below – Article 27 (2) – Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect order public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
“plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;”
This is in line with the exceptions as provided in Article 27 (3) (b) of the TRIPs Agreement. This is however subject to further protection granted for protection of plant varieties as per the Protection of Plant Varieties and Farmers Rights Act, 2001 (PPVFR Act), whereby farmers are entitled to save, use, sow, re-sow, exchange or sell their farm produce including seed of registered variety in an unbranded manner. There is another protection to the farmers under the Biological Diversity Act, 2002. The above provisions for protection of plant variety and bio-diversity are also in commensurate with the UN Convention on Biological Diversity (CBD).
It is in the light of above legal provisions and the intention of the legislative bodies; one has to understand the implications of granting patent or dealing with the issue of patentability of Genetically Modified seeds.
Genetically Modified Food (GM Food) or Genetically Modified Crops (GM Crops) are produced by insertion of a foreign gene through a process of genetic engineering, technically known as Genetically Modified Organisms or GMOs, which has a wide variety of uses in the modern world. According to the World Health Organization, genetically modified organisms (GMOs) can be defined as organisms (i.e. plants, animals or microorganisms) in which the genetic material (DNA) has been altered in a way that does not occur naturally by mating and/or natural recombination. Bt cotton is a GM crop (Non-food) being grown in India while Bt Brinjal (GM Food) is banned in India. A more specifically defined type of GMO is a “transgenic organism.” This is an organism whose genetic makeup is altered by the addition of genetic material from an unrelated organism.
GMOs are used in biological and medical research, production of pharmaceutical drugs, experimental medicine (e.g. gene therapy and vaccines against the Ebola virus), and agriculture (e.g. golden rice, resistance to herbicides), with developing uses in conservation. However, our discussion is limited to GM Crops and GM Food and its implications on human health, agriculture and environment.
Basically, GM crops cause food allergies, increased toxicity, decreased nutritional value and antibiotic resistance. This is a process to attack on the seed sovereignty through “terminator technology” forcing farmers to buy new seed every time they sow a fresh crop. The United Nations Convention on Biodiversity has banned the use of “Terminator Technology”. It is also illegal under India’s Protection of Plant Variety and Farmers Right Act, 2001.
The controversy over GMOs stared in India after a public interest litigation was filed in the Supreme Court in 2006 whereby the Central Govt. stopped production of Bt bringal and it was also decided that a no objection certificate is compulsory for states to conduct field trials. Thus, the farmers protest forced and convinced the then UPA Govt. to put an infinite moratorium on Bt bringal and they have been partially successful when the Genetic Engineering Approval Committee (GEAC) deferred a decision that would have allowed Monsanto to introduce G.M. mustered in the Indian market, and the subject it still politically controversial.
Thus, on one hand there is an issue about legality of granting patent to a genetically modified seed and on the other hand there is an issue of ethics and the likely impact of GM seeds on the environment, human life, animal life and plant life. There is also an issue whether production of GM seeds fulfills the criteria as mentioned in the Agreement on Sanitary and Phyto-sanitary Measures and the other issues of Technical Barriers to Trade as specified in the WTO Agreements. There are challenges on food security on one hand and the technical issues on tolerance of pesticide, herbicide, drought and so on which are in favour of GM crops. The science of genetic engineering is still in the process and the gap between the technology and the law continues to raise several questions before the society.
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