Indian Supreme Court says seeds, plants and animals are not patentable

This article is written by Dr Vandana Shiva. 

A victory for the planet

There has been a major victory for the planet, for biodiversity, for seeds, for farmers, for the rule of law in India’s Supreme Court with the court refusing to overrule a decision of the High Court that upholds article 3j of India’s Patent law , amended to implement the Trade Related Intellectual Property Rights Agreement of the WTO.

Article 3(j) excludes from patentability “plants and animals in whole or in any part thereof other than microorganisns  but including seeds, varieties, and species, and essentially biological processes for production or propagation of plants and animals”.

This article is an implementation of article 27.3 b of TRIPs. While Monsanto brought patents on life into a trade treaty, the Indian government and governments of Brazil and Argentina introduced exclusion to patentability, as well as a suigeneris option for protection of plant varieties.

Monsanto has admitted on record that it tried to write the TRIPs agreement, for it’s own benefit. James Enyart of Monsanto is on record at a conference illustrating just how deeply the TRIPs agreement was supposed to be  aligned to corporate interest and against the interests of farmers, nations and their citizens:

“Industry has identified a major problem for international trade. It crafted a solution, reduced it to a concrete proposal and sold it to our own and other governments… The industries and traders of world commerce have played simultaneously the role of patients, the diagnosticians and the prescribing physicians.”

Farmers' rights

However, our negotiators at the GATT introduced exclusions for plants and animals and a sui generis option in the TRIPS agreement Article 27.3 b We were successful in excluding life forms from patentability in TRIPS and in India’s Patent Act as well as implementing the unique Plant Variety Protection and Farmers Rights Act.

I was a member of the expert group that drafted the law law. The law has a clause on Farmers Rights:
a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act.

Monsanto is therefore making a false claim in its appeal in the SC  that the High Court decision is violative of the TRIPS agreement .Article 27.3 b clearly states “ Parties may exclude from patentability , plants and animals . Article 3j is an implementation of this option of exclusion

While referring to science ad nauseum, Monsanto is violating science.


Monsanto is unscientifically trying to argue that a gene is merely a chemical, a plant is a machine into which the chemical can be mechanically introduced and removed at will . They are trying to make a fallacious argument that Bt cotton is not a plant and Bt genes modified by them is not a part of a plant or plant variety .Genes are part of living organisms. Subcellular organanelles are parts of living organisms. Monsanto is also trying to say their ppatent is for a “product”, not a “process” to try and escape from the restrictions of Art 3j.

However the Patent title itself clarifies that patent number 214436 is for “methods for transforming plants to express bacillus thurengensis delta endotoxis “It is therefore false for Monsanto to argue that that patent is a product patent and not a process patent. Once the transgenic gene made with Bt toxins extracted from the organism Bacillus Thurengensis , with genes for antibiotic resistance markers and genes that act as viral promoters and introduced into cotton ,it becomes  Bt cotton a plant variety which is not patentable under 3j .

The Monsanto lawyer actually said in the court that “we have invented a chemical that turns plants into superplants . The seed is just the container of the chemical”. Seed the very source of life has now been reduced to a container in Monsanto’s desperate attempt to continue to collect illegal royalties from farmers.

Besides falsely claiming patents on Bt Cotton Seeds first as patents on plants, then as patents on genes that are modified in  a lab, now as patents on chemicals, Monsanto is distorting science at the most basic level and wanting to corrupt our national laws based on the highest scientific understanding of the biology of living organisms , of genes, of GMOs .By referring to Bt genes as a "Technology" and now a chemical product added to plants, Monsanto is hiding from the courts that a "gene" even when described in its chemical form as a nucleic acid sequence becomes pat of the plant and its future generations through the essentially biological process of plant reproduction and future breeding.

Bt  genes are genes, and in Bt Cotton they become part of Plants, and a Plant Variety. Genetic modification is a method, not a product.

Article 3j of India’s Patent Law does not allow patents on seeds: Monsanto’s claims to patents on Bt Cotton, now as “product patent “ on genes as chemicals are false and illegal.

Monsanto cannot and does not have a patent on Bt Cotton seed, its patent was  for a lab technique for adding a Bt gene (or two Bt genes in the case of Bollgard II) to an existing cotton plant.

It is now legally reaffirmed that Monsanto did not have a patent on Bt Cotton, that it has illegally collected royalties from farmers, trapping them in debt, driving thousands of cotton farmers to suicide .

Now Monsanto must pay.

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