By Paramjeet Singh
Quite a few scholars have tried to explain the current predicament involving Monsanto and BT Cotton. Many articles and write-ups surfaced in this regard, attempting to take a position and explain the issue from a legal and policy perspective.
Dr. Mrinalini Kochupillai’s guest posts on SpicyIP are an interesting read. Many relevant and important points are raised by her. However, some might fail to understand how the intentions of the government are inferred from the text of the notification or any other material available on record.
Another post, by Prashant Reddy, also addresses the same topic. The Economic Times, in its article ‘GoI must not interfere between GM technology providers and licensees’, also tried to formulate public opinion. In my opinion, it concentrated more on the sanctity of private agreements as well as incentives for innovators and investors. It also focussed on politics of the Indian seed companies and benefits of the GM technology.
In addition to the cases before the Competition Commission India (CCI), (there is another case pending) before the Delhi High Court (DHC), which has been filed by Mahyco. In the preceding case, the DG had been directed to investigate the matter as a prima facie case against Monsanto for the violation of Sections 3 and 4 of the Competition Act.
Therein, the petitioners have recently sought to incorporate certain subsequent events and impugn notification dated 08.03.2016. The latter was promulgated after the filing of the writ petition. The same has been allowed by the court. In the writ petition, Monsanto has contended that by issuing the notification, the government wants to unfairly regulate and expropriate Monsanto’s Intellectual Property Rights (IPRs). Additionally, the government is also violating its freedom to negotiate and contract the terms of licensing agreements with sub-licensee.
In another case before the DHC, Monsanto alleged infringement of its trademark in “BOLLGUARD/ BG” and “BOLLGUARD-II/ BG-II” and its Patent No. IN214436. It claims that the respondents kept on using the aforementioned for manufacturing and selling the GM hybrid cotton seeds.
This occurred even after the sub-licensing agreements were terminated in November 2005, on account of not getting paid the royalties. The allegedly infringing companies agreed before the DHC, without prejudice to the rights and contentions of the parties to the dispute, that they may only sell the already manufactured seeds.
These seeds were manufactured till 30th November 2015, with the plaintiff’s trademark. No seeds manufactured by the defendants after the same will be sold till further orders of the Court. The defendants also agreed to pay the plaintiffs the royalty for the seeds that have been permitted to be sold under this order.
However, the amount that was allowed to be was the one that the defendants thought was payable to the plaintiffs. Furthermore, the disputed amount was to be secured by the defendants by furnishing solvent security to the satisfaction of the Registrar General of the DHC. The matter is still pending and no comment on the merits of the case have been made by the Court.
Monsanto, through Association of Biotechnology Led Enterprises-Agriculture Group (ABLE-AG), also approached the Karnataka High Court (KHC) requesting a stay on the March 8, 2016, notification. It resulted in capping the price of cotton seeds and got the stay as well.
In the interim order passed by the Single Judge, the KHC held that the government could control the maximum seed price of cotton for the benefit of the farmers. However, it could not control and fix the amount of royalties that were the result of mutual agreement between the consenting parties to the licensing contracts.
The Petitioners approached the Division of the KHC against the said interim order.
Telengana and Andhra Pradesh High Court had stayed the May 11, 2016 order of the Telegana government reducing the Trait Value of MMBL. An appeal was filed by the government before the division bench which suspended the stay order. There are other cases pending before the courts.
Paramjeet Singh is a lawyer practicing before the Supreme Court of India.
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