Art 3 j of India’s Patent Law, central to our national sovereignty and national interest

Reflections on the conclusion of the Satyagraha Yatra

By Dr Vandana Shiva, 25 April 2017


I have just completed a Satyagraha Yatra through 6 states to celebrate 160 years of our first freedom movement, 100 years of the Champaran Satyagraha, and 30 years of the Bija Satyagraha.

30 years ago, inspired by our freedom struggle, I had started Navdanya and the Bija satyagraha, to defend our seed freedom and our national sovereignty, in the context of the emerging threat of recolonisation through patents on seeds.

In the 1980s, Monsanto & the Toxic Cartel were imagining that they could impose patents on seeds to collect royalties from every farmer in every country for every seed planted in every season. Intellectual Property Rights (IPRs) expanded to cover living systems and organisms, is a distortion of the “Innovation” and “invention”. This distortion was introduced by corporations such as Monsanto in the TRIPS(Trade Related Intellectual Property Rights) Agreement of WTO. Corporate influence on Patent Law began with the drafting of the Trade Related Intellectual Property Rights (TRIPS) Agreement of the WTO by the Intellectual Property Committee (IPC) of the multilateral corporations.

James Enyart, of Monsanto, is on record illustrating just how deeply the TRIPs agreement is aligned to corporate interest and against the interests of nations and their citizens:

“Once created, the first task of the IPC was to repeat the missionary work we did in the US in the early days, this time with the industrial associations of Europe and Japan to convince them that a code was possible….Besides selling our concepts at home, we went to Geneva where [we] presented [our] document to the staff of the GATT Secretariat. We also took the opportunity to present it to the Geneva based representatives of a large number of countries… What I have described to you is absolutely unprecedented in GATT. 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.”

Countries have sovereign powers to make their IPR laws within TRIPS flexibilities.

We worked with our parliament and our government to ensure that when India amended her patent acts, safeguards consistent with TRIPS were introduced. In TRIPS India had introduced a sui generic option to patents governing seeds and plants, which we implemented as. the Protection of Plant Varieties and Farmers Rights Act, 2001 (the “PPVFRA”).

Article 3 of the patents act defines what is not patentable subject matter.

Article 3(d) excludes as inventions

“the mere discovery of any new property or new use for a known substance”.

This was the article under which Novartis’s patent claim to a known cancer drug was rejected. This is the article that Novartis tried to challenge in the Supreme court and lost.

Article 3(j) excludes from patentability

“plants and animals in whole or in any part thereof other than microorganisms; but including seeds, varieties, and species, and essentially biological processes for production or propagation of plants and animals”.

This was the article used by the Indian patent office to reject a Monsanto patent on climate resilient seeds.

While the Indian patent office rejected. Monsanto’s patent claims on claiming to be the inventor and owner of plants and seeds, the US Supreme Court ruled on behalf of Monsanto, against a farmer called Bowman who had not bought seeds from Monsanto but purchased soybeans from an Indiana grain elevator. The US Supreme court ruling creates intellectual property in future generations of a grain or seed. This is biologically and intellectually incorrect because all that Monsanto has done is add a gene for resistance to its proprietary herbicide Round up, to (i) claim ownership of any plant/animal that gene finds it’s way into and (ii) to enforce a RoundUp monopoly. Adding a gene of RoundUp resistance does not amount to “inventing” or “creating” a soya bean seed, its future generations and the species the gene pollutes.

In addition to suing farmers like Bowman, Monsanto has sued farmers like Percy Schmeiser of Canada whose fields were contaminated with Monsanto’s Roundup ready canola. Instead of the principle of polluter pays, patents allow Monsanto to work on the principle of polluter gets paid. This has recently happened in the Australia in the case of Steve Marsh. While Monsanto does not have a patent on Bt cotton in India, it goes outside the law to collect royalties as “technology fees”. Most of the 310000 farmers suicides in India since 1995 when WTO came into force are concentrated in the cotton belt. And 95% cotton is now controlled by Monsanto.

Monsanto is attempting to undermine India’s laws and national sovereignty by subverting Article 3 j – which amounts to a subversion of our sovereignty and farmers rights to save, exchange, improve and sell seeds. An attack on 3j is an attack on farmers lives and the country’s independence, economic freedom and democracy.

Section 3(j) of the Patents Act specifically provides that plants or any part thereof, including seeds and varieties, are not patentable. As a result, when Monsanto filed its patent claims on Bt cotton in India, out of the 59 claims filed, claims 1–40,41–43,48–56,57,58 and 59 were rejected: as not being allowable under Section 3 of the Patents Act, because they referred to patents on plants.

This was specifically clarified by the Ministry of Agriculture by its letter dated May 13, 1999 in the context of lndia signing the TRIPS agreement and consequent amendments to the Patents Act where it was stated that “It is, however clarified that GMOs per se only will be patentable. Seeds/planting material or any other parts of the plant or plant varieties containing GMOs would not be patentable. GMO’s, if incorporated in a plant variety, would however be regulated under the proposed Plant Varieties & Farmers Rights Protection legislation”.

It was further clarified by the Department of Industrial Policy and Promotion, on 27.5.2002, when the amendment to the Patent Act was carried out, with specific reference to Monsanto.It was stated that Clause 30 excludes patentability of seeds – including genetically engineered seeds. It was also stated that Section 3(j) specifically excludes patenting of plants. Therefore, “no patent on Bt cotton can be allowed”. It was further stated “No patents for plants including transgenic plants can be allowed under section 3(j). Genetically modified plants are excluded from patenting by implication as the term “plants” includes any type of plants including genetically modified plants.”

India is not Canada or USA. In defending and upholding Article 3 j of our patent laws, lies the true test of our freedom, our sovereignty, our civilisation ethic of Vasudhaiv Kutumkam. Article 3j stands as a symbol of intellectual and economic inclusion, guaranteed by our constitution ,and must be upheld in the face of the Monsanto’s attempts at exclusion and monopoly which our laws and our civilisation disallow.

In the 1970’s, Henry Kissinger declared :

‘If you control the oil you control the country; if you control food, you control the population.”

In today’s context, I would add, if you control seed, you control food and life.

Thomas Sankara, the late revolutionary leader of Burkina Faso had said :

‘‘He who controls what you eat also controls you’’

Through the Bija Satyagraha we will continue to defend the integrity of life, the rights of farmers to save and exchange seed, and resist Monsanto’s immoral, illegal attempts to own life and extract genocidal royalties from our farmers.

Seed freedom is our birth right.

Monsanto’s crimes are now recognised worldwide. The recent opinion of the jury of the Monsanto Tribunal has found Monsanto guilty of crimes against people and the environment.

A rogue corporation cannot be allowed to destroy our seed sovereignty , food sovereignty and economic sovereignty.

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Satyagraha Yatra 2017, a pilgrimage for Seed Freedom and Food Freedom

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