Indian court’s decision to uphold GM cotton patent could boost industry research

But the ruling is not the end of the legal challenge.

Gayathri Vaidyanathan

doi:10.1038/nindia.2019.13 Published online 30 January 2019

Almost 90% of the cotton grown in India in 2017–18 contained Monsanto’s genetic modifications.

© Prashanth Vishwanathan/Bloomberg via Getty

Some scientists in India have welcomed a supreme court ruling that reinstates a patent on genetically modified cotton that had been quashed by a lower court. They say the decision to uphold the intellectual-property rights of seed maker Monsanto could help reverse a decline in biotechnology research in agriculture in the country.

“Publicly funded science in this broad area can now be assured of protection of its intellectual property,” says government science adviser Krishnaswamy VijayRaghavan, who is based in New Delhi. “Indian agriculture and other biotech scientists should feel encouraged to innovate further.”

In a long-running battle over intellectual protection for genetically modified (GM) crops in India, the 8 January decision from the country’s highest court is seen as a win for research-focused seed companies such as Monsanto (bought last year by Bayer of Germany) that want protection for their transgenic technology.

But some lawyers say celebrations are premature. Although the supreme court has upheld the patent for now, it has instructed a lower court to re-examine whether Monsanto’s specific patent on GM cotton is valid. Some farmers, scientists and seed-trading companies think the country’s patent laws do not extend to transgenic seeds, crops or plants.

The legislation is open to interpretation — it says that genetic sequences generated in the lab can be patented, but seeds and plants can’t. Scientists say the court’s decision on the Monsanto cotton patent will set a precedent for the protection of other GM crops, which will have a profound effect on research and development in the field.

Cotton is the only GM crop currently approved for cultivation by the Indian government. If the patent is upheld, biotechnology companies will probably increase their investment in the GM research, but a denial could have the opposite effect.

Long battle

Monsanto’s patent covers the process by which the gene Cry2Ab from the bacterium Bacillus thuringiensis is inserted in the cotton genome. This gene causes the plant to make proteins that protect the crop from devastating bollworm caterpillars. Almost all Indian cotton-seed companies pay a trait fee to Monsanto to incorporate the gene into their varieties, which accounted for 89% of cotton planted in India in 2017–18.

After a dispute over the trait fee in 2015, Nuziveedu Seeds in Hyderabad challenged the validity of Monsanto’s patent in court in 2017. In April last year, the Delhi high court ruled that the patent was invalid, finding that items such as seeds cannot be patented under India’s 1970 Patents Act.

The court made its decision without a trial, after both companies waived their rights to one. But the supreme court says this was not allowed, ruling the high court’s decision invalid and reinstating Monsanto’s patent.

Even though the patent will be reviewed again, industry scientists say that the supreme-court decision will restore companies’ confidence in the patent system. This case is about more than just a dispute between Monsanto and Nuziveedu, says Suresh Atluri, founder of Tierra Seed Science in Hyderabad. The ruling sets a precedent that a patent cannot be quashed easily in court, says Atluri. Seed companies that invest in research and development need this protection to deter competitors from copying their discoveries, he says.

“This development will have a positive effect on creating more investments for agriculture research,” says Usha Barwale Zehr, chief technology officer at Maharashtra Hybrid Seeds in Jalna, which has developed a GM aubergine that has not yet been approved for cultivation.

The ongoing intellectual-property case has partly curbed funding for research into GM crops over the past three years, says Zehr. “But to bring it back to the same level it was three years ago will take time, and to a certain level, we all have lost the opportunity of creating new products with new technologies over the past three years.”

Existing knowledge

Some researchers think that the court should not uphold Monsanto’s patent. Polumetla Ananda Kumar, a plant biologist at the Indian Institute of Rice Research in Hyderabad, says many agricultural scientists were aware that crystal proteins in B. thuringiensis could be inserted into the cotton genome to protect crops from pests when the company filed its patent claim in 1998. “Theoretically speaking, one cannot file a patent on an invention about which prior knowledge is available,” Kumar says. “So, on that basis itself, this patent application doesn’t stand any validity in India.”

Bayer currently restricts use of the transgene in India to certain hybrid varieties of cotton. However, if the patent is denied, the company will no longer exercise control over the varieties that get released to farmers, says Keshav Kranthi, head of technical information at the International Cotton Advisory Council in Washington DC. Scientists in public institutions would be free to incorporate the transgene into non-hybrid varieties, says Kranthi. This could improve yields for some farmers, because hybrids are not well suited to the non-irrigated regions that make up 62% of cotton acreage in India, he says.

A Bayer spokesperson says the company is confident that it can defend any challenge to the patent. No date has been set for the retrial.

But if the high court finds in Bayer's favour, Nuziveedu Seeds will appeal the decision, says Murali Krishna Narne, a lawyer for the company.

This article first appeared in Nature.