Fourteen years after Monsanto brought the GM Bt Cotton (Bollgard) to India, it’s unclear if the variety was ever patented in the country – yet Indian farmers and seed manufacturers paid royalties to the company
EXCERPT: Queries to Monsanto specifically on the patent issue were avoided.
Seeds of doubt: Monsanto never had Bt cotton patent
Shishir Arya & Snehlata Shrivastav
The Times of India, June 8, 2015
Fourteen years after US multinational Monsanto brought the genetically modified (GM) Bt Cotton (Bollgard) to India, there is no clarity on the discovery having ever been patented in the country. Clueless Indian farmers and seed manufacturers have paid crores as royalty to the company from 2002 until 2006, when the company came out with Bollgard 2, which was, incidentally, patented.
Two arms of the central government differ on the patent issue. The Central Institute of Cotton Research (CICR), in an RTI reply to farm activist Vijay Jawandhia, emphatically stated that Monsanto's "cry1ac Mon 531" gene was never patented in India. However, the ministry of environment and forests (MoEF) wrote to him that the Bt seed developed by University of Agriculture Sciences (Dharwad), which was found to contain the Mon 531 strain, "cannot be launched in the market" due to a "patent violation". It did not specify who held the patent.
Queries to Monsanto specifically on the patent issue were avoided. "Monsanto has proprietary rights in its regulatory data as well as its biological materials, trade secrets and know-how, which are also protected under Indian law. The Mon 531 is subject to such rights," said a company spokesperson and never got back on a query seeking the patent number.
A senior official in the ministry of commerce handling intellectual property affairs trashed the proprietary theory. "Either there is a patent or not, there is nothing like a proprietary right. A company can protect its trade secret in other countries but there is no such law in India," he said.
TOI's independent search for the patent on the Mon 531 gene also drew a blank. The Patent Information System office, which is the only storehouse of all patented documents in India, is located in Nagpur. For a fee of Rs250 per hour, an assisted search can be conducted for any patent.
The MoEF, which deals with genetically modified crops, seems to have only facilitated Monsanto's free run in the market by ruling that using Mon 531 requires a no-objection certificate from the multinational.
"The ministry seems to have gone out of its way to help Monsanto market the Bollgard brand, which has the Mon 531 gene," said Jawandhia. "I brought this to the notice of PM Narendra Modi, environment minister Prakash Javadekar and state CM Devendra Fadnavis too. But there has been no response. Without the active support of ministry officials, it would not have been possible to keep the fact that Monsanto has no patent on Mon 531 under wraps," he added.
TOI spoke to former environment minister Jairam Ramesh and Javadekar, several senior bureaucrats and research scientists in government institutes. Queries were either stonewalled or inconclusive.
Two events further strengthen the feeling that Monsanto had some kind of backing from the government. First, after scientists in Dharwad developed an Indian Bt - Bikaneri Narma (BnBt) - the MoEF turned down its mass production as it was found to contain the Mon 531 strain. Then, when CICR used the BnBt to develop 21 different varieties through cross breeding, its further dissemination could not progress due to the patent factor brought out by MoEF.
"Since there was no patent, why did MoEF prevent mass production," asks Jawandhia.
Sources told TOI that CICR scientists briefed the agriculture ministry that there was no patent for Mon 531 and it was free to use. It would have been a game-changer, as India could have gone for mass production without paying royalty to Monsanto.
A 450 gram bag of Bt cotton costs Rs900-950. "With the Monsanto seed offering protection against the most dreaded cotton pest bollworm, farmers went for it. Had the seed been allowed to be manufactured by Indian companies, the price could have come down substantially," said Jawandhia. The high price of seed is also stated to be one of the reasons for the cotton farmers' misery.
Monsanto sells its seeds through a joint venture (JV) with Maharashtra Hybrid Company (Mahyco) in the entire country. The JV has further granted sub-licences to Indian firms for producing Bt cotton seeds. These Indian firms too market the hybrid variety at an equally high cost.
From 2006, the US multinational flooded the market with the Bollgard 2 variety of the gene, which provides additional protection. Monsanto has patented it in India and is selling it through the same JV.
"Since the first Bollgard is not patented and is still effective, India should go in for mass production to reduce the burden on cotton farmers," said Jawandhia.
IN OUR BID TO GET THE COMPLETE PICTURE, TOI SPOKE TO VARIOUS PEOPLE. HERE'S WHAT THEY HAVE TO SAY:
Dr Keshav Kranthi, Director of Central Institute of Cotton Research (CICR)
The only issue with the Bikaneri narma seed was that it had the Mon 531 gene and this was not mentioned in the regulatory approvals. It is not certain whether Mon 531 was deliberately introduced into Bikaneri narma or it happened simply due to cross pollination which is a common occurrence. Still, without a patent, there should be no restriction on using the Bikaneri narma BNBt seed. We had developed 21 varieties using the Bikaneri Narma seed. The process of commercializing the 21 varieties could not go ahead due to the confusion that followed after it was found that Bikaneri Narma had Monsanto's gene. It was often discussed that varieties could still be marketed as there was no patent, but there was no decision. In February 2014, the Indian Council for Agricultural Research took cognisance of the matter and it is now seriously considering the way forward. Even as the market is flooded with the Bollard II variety, which has different gene and is patented, Mon531 variety is better suited than the Bt hybrids for rain-fed areas like Vidarbha and Telangana.
Vijay Jawandhia, farm activist from Shetkari Sanghatana
The government should wake up to the fact that there is no patent on the Mon 531. Even Pakistan has acknowledged that there is no patent on the Mon531 gene (he was quoting a newspaper report). The MOEF's reply that it has a patent is misleading. Even the Bikaneri Narma variety can be used despite it having the Monsanto gene.
Monsanto, seed producing company from US
On May 25, company spokesperson Arun Gopalakrishnan sent a mail. It reads: "Monsanto has a robust patent estate covering its cotton technologies in India. Additionally, Monsanto has proprietary rights in its regulatory data as well as its biological materials, trade secrets and know-how, which are also protected under Indian law. The Mon 531 event is subject to such rights. In consideration for sub-licensing of such rights to various seed companies, it receives a fee payable under mutually agreed contracts." On May 26, TOI sought a specific answer on the patent for Mon-531 gene. He sought two days to get the reply from Monsanto's US headquarters, but has not reverted despite reminders.
Jairam Ramesh, former minister for environment and forests
On May 27, he wrote in a mail, "This was much before my time - between 1998 and 2002 - as minister. Bt cotton commercialization decision was taken in 2002. But I agree with Jawandhia's demand. We should have had a public sector Bt cotton initiative first.
Prakash Javadekar, current MoEF minister
On May 29, the minister said in a telephonic conversation, "I have no idea about the technical details related to Bt cotton, however I will ask my officials to get back." There has been no communication despite a few reminders.
Rajini Warrier, director of MoEF who signed the RTI, reply to Jawandhia
On May 28, TOI emailed her the query. On May 29, in a telephonic conversation, she said, "Please ask this question to the Indian Council of Agricultural Research (ICAR)." Warrier was a member of the genetically engineering approval committee (GEAC). The body, now renamed genetically engineering appraisal committee (GEAC), deals with issues related to Bt cotton.
Hem Pande, additional secretary MoEF
In response to a mail sent on May 27, his PA said, "The TOI query has been forwarded to Rajini Warrier."
The ICAR, on why it is not using Mon-531 in its cotton varieties and hybrids since Monsanto does not have a patent.
The mail was sent to deputy director general (crop sciences) ICAR on June 1. Mon-531 is a proprietary event of Monsanto. Though, it is reported that Monsanto does not hold a patent in India, it would not be appropriate to use a technology without the concurrence of the technology-developer and without the permissions of the regulatory authorities such as the RCGM (Department of Biotechnology) and GEAC. However, the ICAR is open to the option through complete compliance and adherence to rules and regulations.
1986: Monsanto develops Bt cotton, with cry1ac gene - Mon 531
1996: US approves commercial cultivation of Mon 531 gene in USA
1995: Mahyco brings 100 gm Monsanto Bt cotton seeds with due permission from MoEF
1997: Monsanto ties up with Mahyco for production and sub-licensing
2002: Bt cotton gets approval in India by the GEAC on April 26
2006: Bollgard-II approved for cultivation in India; BGII has cry1ac and cry2ab Mon15985 gene
2008: Bikaneri Narma, an Indian variety, gets approval by GEAC on May 5, 2008, but later it was found to have the Mon 531 gene
2014: Nearly 92% of the BT cotton area is under Boll-II in India
When India refused Monsanto's offer
Nagpur: Before commercially launching the Bt cotton seed in India, US multinational Monsanto had offered to sell the technology to the Indian Council for Agriculture Research (ICAR) for Rs4 crore in 2002. But the ICAR found the offer too high.
In the meantime, ICAR planned to develop an indigenous Bt seed at the Central Institute of Cotton Research (CICR) in Nagpur. However, not much progress was made as the CICR got only Rs40 lakh of the Rs1 cr promised.
"Monsanto was ready to sell the entire technology at one go. This could have enabled free use of the technology by public sector units for just Rs4 crore. And even if the government would have further sold the technology to private sector it still would have been a much cheaper deal," ICAR sources said.