Agronomic Economy: An episode of Spineless Recommendations

Patentability of plant and seed varieties

The standing committee report puts forth that the patents on new varieties of plants and seeds should be granted by the Indian Patent Office.  It puts an additional rider to the patenting of said things by suggesting that patents should be granted to plants and seeds which are favourable to the agrarian sector with a precondition of making the Government of India as a participant in them.

Notably, the patenting procedure for new plants and seed varieties is in a ‘statutory limbo’ by virtue of Section 3(j) of the Patents Act as it explicitly prohibits the same. Regardless of this, the report does not mention anything about the definitional interpretation of ‘living and non-living substances occurring in the nature’ or about how existing biological processes are practiced without being statutorily protected. Also, though this prohibition is primarily due to the risks associated with granting patents over the plant varieties, it can still be argued that the potential economic benefits resulting from plant variety protection and production may seem to be a luring consideration to allow it. Subsequently, the genetically-evolved seeds or plant varieties and equipments of new biological processes can be made available at subsidized rates to the farmers ifthe respective stakeholders involved, as well as the department, come up with a well-devised strategy while keeping in mind the needs and requirements of the agrarian community.

Mandatory Partnership with the State – Socialist Approach or Death of Free Economy  

Now coming to the second part of the suggestion, it seems to be a bit obscure, for the simple reason that the power to enforce a mandatory state-partnership does not seem to exist anywhere in the Patents Act, 1970. The enforcement of a mandatory patent-partnership by the State, can be grounds for it being statutorily ultra vires and inherently unconstitutional. This is mainly because such a compulsion infringes upon, and can consequently violate the intellectual property rights of the community involved.

Yes, there exists a provision by virtue of which the government can enforce compulsory licensing in the interest of the public. This authority stems from the Article 30 and 31 of TRIPS Agreement which allow for limited exceptions to the exclusive rights in case of non-commercial use of a patent, but it can only in exclusive cases, allow the state to enforce compulsory licensing in the interest of general public. Ifa distinction is made-out between ‘inventorship’&‘ownership’, it could be argued that a case for shared ownership exists but in the authors’ opinion such a case should ideally require a substantial share in attaining inventorship, whereby the inventors won’t be compelled into making the state a mandatory assignee in absence of this requirement.

Exploiting Agricultural Traditional Knowledge – Framing the Farming Practice

The committee further proposed that the farming communities which possess ‘agricultural traditional knowledge’, could be employed to improve agricultural methods or to invent pharma products, should be mobilized for claiming their own respective IPRs. Herein, again it was prescribed that the Government should play a role of joint-owner of the rights. This was essentially suggested with an intent of ensuring the fair monetization of these rights and restricting their misappropriation or exploitation.

As was settled earlier, it is clearly improbable to enforce such a suggestion, due to the mandatory compliance required by it, as regards to the state’s intrusion and intervention in an individual’s, or a community’s vested right. Also, this suggestion is statutorily unrealizable because, Section 3(h) of the Patent Act, explicitly excludes agricultural and horticultural methods from the field of patentable subject-matter. Amending the aforesaid provision would entail an extensive instillment of definitional contours for terminologies like agricultural ‘methods’ or farming ‘practices’ and the report seems to be silent on them. Moreover, the existing techniques of cultivating farm-produce would demand a retrospective application of such a potential amendment and if it is implemented with a prospective effect then such existing methods would fall prey to unconsented utilization by competitive agro-practices.   

Furthermore, in addition to the aforesaid observation, the aspect of monetization or commercialization of these Patent Rights, should be taken into consideration. When contemplated upon, some questions do arise in this regard. Is the committee suggesting that the government is lawfully entitled to accrue benefits and profits by capitalizing over the traditional knowledge of these farming communities? What kind of an interpretation should this recommendation be subjected to by the legislature or the courts? Is the committee suggesting the government to take recourse to a narrow, pedantic approach towards restricting its supervision only to the efficient management and protection of such IP rights? Or is it to be given a wide interpretation so as to allow the state to be in control of all the aspects of these rights, in the interest of the public? No guidelines have been laid down for answering these highly poignant questions.

However, if a mutual consensus could be reached upon, between the holders of these TKEs and the government, with regards to the joint-ownership of patents, then a sustainable model could be developed. Indian Agro-Industry suffers from lack of IP awareness which makes the patented inventions susceptible to litigative hijacking by the competitors and this in turn weakens the research innovation of the whole field. To mitigate this drawback, government can intervene and help the farming communities in not only innovation of patentable agricultural products or practices, but also for defending any patent-dispute litigation arising therefrom. Distancing itself from the economic profits originating from patent enforcement, the sate can restrict itself strictly to defending the said patents by its well-established litigative panel. Although conflicts of interest between different cases are bound to arise in such an arrangement.

Congratulations are in order but situation’s in disorder

The committee spoke about the role of grassroot bodies like ‘Krishi Vikas Kendras’ which helped the locals associate with governmental organizations instituted for increasing general perception of IP rights. It enlisted some effective measures for ensuring a deep-rooted IP awareness at the local level of the domestic agro-industry by prescribing different multimedia options, such as the use of exclusive videos in the colloquial language which can be forwarded to all registered cell-phones. Though this seems to be a silver lining for the ambition of achieving ground-level IP awareness, the recommendations in the report were simultaneously accompanied by futile comments about lack of IP acculturation in farming communities, which make it difficult to analyse the committee’s narrative.

Ending with Propositional Cliches and Paper Declarations

The Committee further highlighted the need for developing interest of youth in taking agriculture as a profession , raising farmers’ income, effects of WTO and TRIPS agreement on farmers’ subsidy, and establishment of testing laboratories for organic products. How to go about achieving all of these? The standing committee report says, ‘no comments’.

Unfortunately, the effectiveness of these recommendations, shall entirely be reliant on their implementation, and their compatibility with the incumbent laws, and judicial precedents. Does such a set of recommendations really help in formulation of farmer friendly laws, is the fundamental question a reader is left wondering about.