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New League for the Indian Agriculture- Advent of Intellectual

Property Rights

-Pallavi Mahajan
Independent Legal Counsel, Delhi High Court,
BSL LLB (Pune University), Associate Company Secretary (ICSI)

INTRODUCTION

With the advent of the new knowledge economy, the old and some of the existing
management constructs and approaches would have to change. Intellectual property
rights (IPR) have become important in the face of changing trade environment which is
characterized by the following features namely global competition, high innovation risks,
short product cycle, need for rapid changes in technology, high investments in research
and development (R&D), production and marketing and need for highly skilled human
resources.

Agriculture is a way of life, a tradition, which, for centuries, has shaped the thought, the
outlook, the culture and economic life of the people of India. The importance of the
agricultural sector as a source of food, incomes, employment and often foreign exchange
cannot be overstated. As much as good health, a productive and sustainable agricultural
sector is critical to achieving economic growth and poverty reduction.

The recognition of agriculture as a rule-bound enterprise of investment and profit making

became obvious with its inclusion in the intergovernmental negotiations for the General
Agreement on Tariffs and Trade (GATT) for the first time in the Uruguay Round (1986-
1994). This round led to the establishment of the World Trade Organization (WTO) in
January 1995. Now, the WTO has at least half a dozen intergovernmental agreements that
directly affect agriculture. These are Agreements on Agriculture (AoA), Applications of
Sanitary and Phytosanitary Measures (SPS), Technical Barriers to Trade (TBT), Anti-
Dumping, Subsidies and Countervailing Measures, Safeguards, and Trade Related
Aspects of Intellectual Property Rights (TRIPs).

ADVENT OF IPRs IN AGRICULTURE

The assignment of IPRs to living things is of relatively recent origin.Vegetatively

propagated plants were first made patentable in the US only in 1930. And the protection
of plant varieties (or plant breeder’s rights - PBRs), a new form of intellectual property,
only became widespread in the second half of the 20th Century. Intellectual property
protection can be conferred in relation to plant materials in a number of ways:
 The US model of plant patents, which are distinct from normal (utility) patents
 Through allowing normal patents on plants or parts thereof, such as cells
 Through patenting plant varieties as is the practice in the US and in few other
countries (for example, not in the EU)

Electronic copy available at: http://ssrn.com/abstract=2843677

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 Through applying a sui generis form of plant variety protection (PVP), such as
plant breeders’ rights (as in the EU or the US) or other modalities
 Through allowing patents on DNA sequences, and gene constructs including the
gene, plants transformed with those constructs, the seed and progeny of those
plants.

With the adoption of the TRIPS Agreement, developing countries have been obliged to
adopt protection of plant varieties, by patents or by other means, without any serious
consideration being given to whether such protection would be beneficial, both to
producers and consumers, or its possible impact on food security. There are two
provisions in the WTO-TRIPs agreement affecting agriculture. The first is that
“contracting parties shall provide for the protection of plant varieties by patents and/or by
an effective “sui generis system” (Section 5, Article 27 3b).

Following establishment of the international institutional mechanisms, such as, the

Convention on Biological Diversity (CBD) and the WTO, and further, signing of
International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA),
the growing importance and the global scope of IPR in agriculture are well realized and
recognized.

IMPORTANT PROVISIONS OF THE WTO AGREEMENT CONCERNING

AGICULTURE

A review of clause (b) of para 3 of Article 27 of the TRIPS Agreement is due in the year
1999. This part of the Article states as under: -

“Members may also exclude from patentability: Plants and animals other than
microorganisms, and essentially biological processes for the production of plants or
animals other than non-biological and microbiological processes. However, Members
shall provide for the protection of plant varieties either by patents or by an effective sui-
generis system or by any combination thereof. The provisions of this subparagraph shall
be reviewed four years after the entry into force of the WTO Agreement.”

Three permissible exceptions to the basic rule on patentability. :

 Inventions contrary to order public or morality. This explicitly includes

inventions dangerous to human, animal or plant life or health or seriously
prejudicial to the environment.
 Diagnostic, therapeutic and surgical methods for the treatment of humans
or animals.
 Plants and animals other than microorganisms and essentially biological
processes for the production of plants or animals other than non-biological and
microbiological processes.

Electronic copy available at: http://ssrn.com/abstract=2843677

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Basic purpose of UPOV is to ensure national treatment for any breeder of the world at par
with domestic breeders. The UPOV 1991 as the UPOV documents show (Jan, 1999), tries
to achieve the following:

Article 14(1)(a) of the 1991 act made the breeders' rights more precise. By extending the
breeder's right under article 14(2) OF 1991 ACT, UPOV 1991 act to harvested material
where 'breeder has not had enough opportunity to exercise his right in relation to the
propagating material'(1999). It also means that import of harvested material can also be
protected both by way of collection of royalty and safeguarding the interests of national
licensed producers.

The provision of compulsory licensing can of course be invoked in the event of special
national interests. Farmers' Privileges can be protected in terms of rights to save seed,
exchange it for non commercial purposes. The issue here is that Indian breeders will need
all these protections in other countries. The mind set where we evaluate every thing from
an importers' perspective must change.

GLOBAL AND NATIONAL SCOPE OF IPRs IN AGICULTURE

Broadly, protection of all forms of IPR may be relevant in agriculture but its application
has to be limited to the relevant domestic Acts in vogue. Patents, in India, are so far
available to new processes but not to all products per se. In agriculture, patents may be
obtained for processes related to agrochemicals, growth promoters and regulators,
vaccines, drugs, hides and wool, dairy technology, food technology, fuel and biogas
production, bioreactors, standardization of various laboratory protocols, environment
management, etc. Copyrights and related rights, on the other hand, may be registered for
databases, bioinformatics, genes and gene sequences, amino acid sequences, antibodies,
etc. Application of industrial designs and the topographies of integrated circuits would be
relevant, particularly in agricultural engineering. Nevertheless, in the days to come, IPR
is likely to dominate the agricultural scenario irrespective of whether the technology in
question is conventional or modern—biotechnology or information technology.

In India, the Patents Act, 1970, constituted the basic Principal Act on the subject. This
Act hardly included innovations in agriculture under the patentable subject matter. India
is bound by all the provisions of TRIPs Agreement, which oblige the country to
enact/amend relevant domestic laws. Further, with such shifts in legal provisions and also
national policies, increased private participation in agricultural R&D and far more public-
private relationships, including both competition and cooperation in relevant areas, are
imminent. Several legislative and institutional adjustments are being made in the country
to gear up and face the challenges of globalization. These include enactment of new
legislations on Protection of Plant Varieties and Farmers’ Rights Act, 2001 and
Geographical Indications of Goods (Registration and Protection) Act, 1999, and
amendment of Patents Act, 1970 in 1999 and 2002. The Biological Diversity Bill, 2000 is
in the process of enactment and revision of the Seeds Act, 1966, is also receiving
attention. The need to provide for protection in the areas specific to farm animal sector is
also being realized.
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It is considered important to identify and develop various national policy options for
addressing the emerging areas of IPR in agriculture, including the access to various
protected technologies to the Indian farmers, entrepreneurs and users. It is high time that
a critical analysis of the system is undertaken for its strengths, weaknesses, opportunities
and threats (SWOT), to convert threats into opportunities and mitigate weaknesses
through timely action.

POSITIVE ATTRIBUTES OF THE IMPLEMENTATION OF IPRs IN

AGRICULTURE

The IPR, after long debate, is recognized as an asset and means of rewarding and
harvesting the fruit of agricultural research and development. Recognition of intellectual
property rights provides an effective means of protecting and rewarding innovators. This
acts as a catalyst in technological and economic development. The essence of regulation
of IPR by law is to balance private and public interests. At the same time, equitable
benefit sharing is to be realized in effective terms. IPRs have played a part in the major
consolidation of the global seed and agricultural input industries. An important, but
perhaps under-appreciated aspect of most systems of intellectual property rights is their
requirement that the inventors and researchers seeking these rights must disclose the new
knowledge they have obtained. As new ideas are disseminated through publication,
licensing, or other means, this information stimulates further rounds of innovation and
technological advances. There is massive evidence to support the fact that appropriate
legal protection acts as an incentive for productive research. PBR is not a panacea, but
can serve the farmers by increasing their access to improved seeds at reasonable prices by
augmenting the efforts of public systems through private seed firms. The requirement for
uniformity (and stability) in UPOV type systems excludes local varieties developed by
farmers that are more heterogeneous genetically, and less stable. These characteristics are
those that make them more adaptable and suited to the agro-ecological environments in
which the majority of poor farmers live.

Considerable knowledge of economic importance is produced, reproduced, and

improvised by individuals and also in recent times i.e., through contemporary
innovations. Even the traditional knowledge should receive certain kind of protection if
incentives have to be generated to conserve not only the knowledge but also the
institutions of its reproduction and inter-generational transfer.

The initiative of IPR introduction is to promote a ‘Second Green Revolution’ in India

which means promoting agriculture biotechnology, especially genetically engineered
crops and foods.

KEY OBJECTIONS CONCERNING THE INTRODUCTION OF IPRs IN

AGRICULTURE

There are many legal complexities about definitions arising from the wording of TRIPS,
such as the exact meaning of a plant variety, a “microorganism” or an essentially
biological process. c) Intellectual property right regime evolved for protecting industrial
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designs and processes and is not suitable for biological processes and products. Many
NGOs and activists see no merit in the IPRs regime for providing incentives to local
communities and creative individuals. They term the attempts of the large corporations
(generally MNCs) to access biodiversity without sharing any benefits with local
communities as ‘Biopiracy’. Many others oppose the IPRs because these are supposed to
commoditize knowledge which reportedly was `always’ in the common domain for
universal/local benefit. High costs of hiring patent attorneys are supposed to make the
present patent system out of reach of grassroots innovators. Some people object
altogether to the patenting of life forms on ethical grounds. The sequencing of the human
genome also raises specific concerns.

A major issue of importance to the future of agricultural research is the conservation of

genetic resources held in fields and in national and international collections, along with
guaranteed access for researchers on terms that recognize the contribution made by
farmers in the developing world in conserving, improving and making available these
resources. In the days of fast changing technology, and commercial interests of
multinational companies taking priority, how far this bill/act will safeguard the interests
of our farmers is a serious concern. The shift towards hybrids actually nullifies the
concessions given to the farmers in the new act for saving, reuse and non-commercial
seed exchange between farmers. Leaving aside the technological problems associated
with the transgenic (Genetically Modified) crops, use of proprietary technologies
(processes, material and instruments) in developing these varieties, warrants payment of
royalties to the corporations holding rights over them.

There are considerable dangers to food security if the technologies are overpriced to the
exclusion of small farmers, or there is no alternative source of new technologies,
particularly from the public sector. Further, the increase in concentration, and the
conflicting patent claims when both the public and private sectors have patented plant
technologies, may have had an inhibiting effect on research.

RECOMMENDATIONS

1. Harmonization of IPR System

 A high priority should be given to generation, evaluation, protection and effective
commercial utilization of tangible products of intellectual property in agriculture.
 Use of trademarks for brand development of Indian agricultural products should
be encouraged as safety net in agribusiness.
 Future technological options in agriculture should be fully harnessed from the
knowledge, the art and the strength to realize the IPR opportunities. Core
competence should be developed through appropriate means, mechanisms and
systems to harness the best of the intellectual property generated.
 The area of IPR in agriculture should be addressed in conjunction with traditional
rights and indigenous knowledge. Access to genetic resources in the new regime
is likely to be facilitated but it will certainly be regulated. Rights to equitable
sharing of benefits must be suitably balanced with the rights to IPR protection
wherever applicable.
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 A high priority and liberal financial allocation should be made to the projects that
may lead to development and strengthening of traditional knowledge and resource
databases in order to discourage such protection by third parties.
 High priority must be accorded to the development of competitive products,
particularly in agrochemicals and biotechnology, in Indian agriculture, besides, further
making suitable amendments in the Patents (Amendment) Act, 2002.
 Steps should be initiated on the analogy of Protection of Plant Varieties and
Farmers’ Rights Act, 2001 so that in future animal and fish breeds/strains and also
farmers’ rights on these genetic resources are protected by law.

2. Awareness Generation and Literacy in IPR

 An intensive awareness generation campaign for confidence building to accept
and apply IPR in agriculture should be launched to this effect, at all levels and for
all relevant sections of the society. Increased general awareness should be
brought out in public to enable them to respond to various opportunities,
challenges and threats. Elaborate awareness tools—compact discs (CDs),
documentary films, newspaper features and advertisements should be developed
and widely disseminated in all languages through mass media.
 Issues and concerns, scope of application of IP protection in one form or the
other, or in conjunction, various exceptions and exemptions, procedures and rules
in the Indian and global contexts in easy to understand, simple language and
comparisons with other countries on case-to-case basis must be analyzed and
presented for public appraisals.
 Compendia on IPR protection and technology transfer should be published for
wide distribution. Such compendia should cover rules, procedures, forms,
guidelines, other important tips and selected case studies on various provisions,
admissibility and application, infringement and remedies for various forms of
IPR protection in accordance with different domestic laws and also in
comparison with other country laws.
 All concerned institutions/organizations should generate, publish and widely
disseminate relevant information and common literature on IPR in agriculture in
the form of brochures and technical bulletins, etc.

3. IPR Education, Training and Human Resource Development

 Emphasizing on the need to educate children—potential inventors and innovators
of future years, it is time to think of developing suitable curriculum right from
the, school level.
 In order to enhance the level of higher education in the country for IPR in general
and IPR in relation to agriculture in particular, there must be at least one
compulsory course at the undergraduate and postgraduate levels in all agricultural
universities and deemed universities, and also in the law colleges all over the
country. Further, an LL.M. degree programme should be started in ‘IPR laws in
relation to Agriculture’ at various law colleges in the country.
 Summer and winter schools and periodic training programmes should be
conducted in the country for teachers, scientists and technical staff in order to
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enhance national competence to appropriately address the area of IPR in

agriculture and allied sectors..
 Human resources in the ICAR institutes and the SAUs should be developed and
strengthened in order to help efficient application of IPR in agriculture and allied
sectors.

4. Strengthening the Institutional Mechanism—Legal, Regulatory and

Administrative
 High priority should be accorded to the process of completing the required
legislative provisions and also the notification, functioning and strengthening of
national institutional mechanisms corresponding to various Acts. Further their
governance should be controlled by eminent scientists with wide experience in
relevant fields and the Tribunals should also have technical members.
 Enforcement of new Acts and Amendments related to IPR in agriculture should
be speeded up.
 Legal consultation process should be initiated to firm up the contextual position
and decide the course of action. Development of related laws, such as, enactment
of Biological Diversity Bill, 2000, should also receive attention. Appropriate
legal instruments related to conservation, maintenance, trade and sustainable
utilization of animal genetic resources should be brought about.
 Simplified regulatory procedures for relevant application of IP protection and
also for seeking any prior informed consent (PIC) on mutually agreed terms
(MAT) for access to genetic resources and equitable sharing of benefits should be
developed.
 It is recommended that parallel laws like the Seeds Act should be strengthened
as they help in better application and enforcement of particular IP laws, such as
the PPV&FR Act, 2001, in order to support effective implementation of sui
generic system of protection. Similarly, Contract Law should be reviewed to
strengthen the law on Trade Secret, and the law related to land ownership of
small farm holders should also be strengthened to judiciously implement the
farmers’ rights.
 Short and medium term fiscal plans should include provision for resources that
would help in meeting the costs of adjustment. Commitments by successive
central and state governments should ensure availability of precommitted
resources in the techno-legal area.
 Management and Information Services should be strengthened in the ICAR
institutions and SAUs in order to change their basic approach to research and IPR
protection. Facilities should be established and strengthened for identification of
relevant research areas through patent search, literature survey, UPOV database
search etc. Early and conflict-resolving information services should be set up in
the broader context.
 Inventors and innovators should be provided with their share commensurate with
the worth of a commercialized invention whereas incentive should be given to all
inventions whether processes or products in order to ensure a viable, dynamic
and effective national institutional mechanism of IP management.
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 Elaborate Clearing House Mechanism (CHM) should be developed and

strengthened in relation to IPR in agriculture, encompassing all possible
information on basics, thematic areas, related treaties, conventions and
agreements, historical to current events and future activities.

5. Strengthening the Policy Area

 Attention should be given to further liberalization of agricultural markets,
promotion of private sector investment and more efficient technology systems.
 Codes and procedures for rewarding the concerned partners and stakeholder
scientists should be developed in the ICAR.
 A centre for forecasting market trends and the status of the national and
international markets should be established to enhance the prospects and
sustainability of competitive Indian agriculture.
 There is a strategic need to increase growth-enhancing public investment, besides
capital formation in agriculture, and promoting private sector activities and
resource contributions.
 The lowest income groups should be continuously protected in accordance with
clearly defined policy and directives by direct and indirect support programmes.
 There should be intergovernmental negotiations to address issues like the
trusteeship/ownership of animal genetic resources in various genebanks and the
legal frameworks for the databanks, including acquisition of the classified data on
animal genetic resources.
 India must continue to contribute towards development of a level-playing field at
the intergovernmental platform between the developing and the developed
economies..

6. Harnessing IP-linked Technical Opportunities in Agriculture

 Trademarks should be extensively used for brand development in agriculture.
Genes and gene sequences, amino acid sequences, antibodies, etc., should be
protected by copyrights until there is opportunity to patent and commercialize
these products. Judicious application of other forms of protection should be done
as and where applicable. Protection of IPR in all cases should be essentially
linked to commercialization, sharing of royalty and other benefits, and further
enhancement of relevant R&D.
 Quick action should be taken to record and document farmers’ varieties in the
country as available over space and time and the traditional knowledge associated
with their use.
 IP linked technical opportunities in agriculture may be extended to applied
management of genetic resources including microorganisms. Biotechnological
advances should be integrated with genetic resource management.
 At least five per cent of the research budget in agriculture should be allocated to
protect the public sector R&D for sustainable IPR portfolio management, and
technology development and mobilization in agriculture.
 Timely, corrective steps should be taken based on critical gaps, including the kind
of IP scenario likely to emerge in future.
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 Competitive funding schemes should be encouraged to develop research links

between profit-making and non-profitmaking research institutions and to build
bridges between the use of propriety and public domain resources and
technology.

7. Linkages and Cooperation

 Mutually supported testing of technologies should be encouraged by a change in
attitude and mindset in public-public, public-private or private-private
partnerships.
 In order to provide encouragement for the public-private partnerships in true
spirit, minimal codes of procedures should be developed and applied in different
key areas of partnership.
 Confidence building should be accelerated in cross-sectoral partnerships. More
opportunities should be provided for frequent interaction among the agricultural
scientists, research institutions, agricultural industrial sector and entrepreneurs.
 Voluntary or concessional legal advice may be provided in partnership deals of
strategic importance to enhance competitiveness of Indian agriculture and to
attend to the problems of uneven-playing field among the resource-rich and
resource-poor potential partners. A common platform should be provided on
sustainable basis to seek assistance from the attorneys and lawyers having
reasonable agricultural R&D background.
 Agencies like APEDA, FICCI and CII should earmark resources and funds to
meet the contingent needs for relevant transnational IPR cases involving the
Indian agricultural sector and to provide emergent support on case-to-case basis.

CONCLUSION

Thus developing countries have possibly three options for meeting their obligation to
protect plant varieties under TRIPS: UPOV style legislation based on the 1978 or 1991
Convention (although they may now only join the 1991 Convention) or another form of
sui generis system, including or not landraces or Patents on plant varieties. Maximum use
be made of the possibilities under TRIPS of excluding inventions from patent protection.
Even where TRIPS requires patent protection to be available, for example in respect of
microorganisms, there is still scope for developing countries to restrict the scope of
protection.

Developing countries should generally not provide patent protection for plants and
animals, as is allowed under Article 27.3(b) of TRIPS. Rather they should consider
different forms of sui generis systems for plant varieties. Those developing countries with
limited technological capacity should restrict the application of patenting in agricultural
biotechnology consistent with TRIPS. The extent to which patent rights extend to the
progeny or multiplied product of the patented invention should also be examined and a
clear exception provided for farmers to reuse seeds. The continuing review of Article
27.3(b) of TRIPS should also preserve the right of countries not to grant patents for plants
and animals, including genes and genetically modified plants and animals
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The objective should be to ensure that research is oriented to the needs of poor farmers;
that public sector varieties are available to provide competition for private sector
varieties; and that the world’s plant genetic resource heritage is maintained. In addition,
this is an area in which nations should consider the use of competition law to respond to
the high level of concentration in the private sector.
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