Intellectual Property Rights and the Politics of Food - The Oxford Topic of Food, Politics, and Society - page 393

as a monopolist seeking control by using intellectual property rights. In the case of agri-
cultural biotechnology—or the “gene revolution” in agriculture—the private sector is
the dominant player with the public sector paying more attention to basic research and
provision of germplasm (see Pray and Naseem, 2007; Harriss and Stewart, this volume).
Moreover, the private sector has built a strong patent portfolio covering many technolo-
gies; the public sector's share in such patents is much less than that of the private sector.
For example, in the case of patents related to Bt cotton in India, it was found that the
private sector had a major share while the public sector had a limited share.20 But the
availability of seeds of unapproved varieties containing patented genes and their rapid
diffusion among farmers demonstrate the difficulty in enforcing intellectual property
rights and in regulating genetically modified crops. In India, this has been the case with
Bt cotton, which has been a favorite with farmers for more than a decade (Herring and
Rao 2012).
India does not allow patents on plant varieties and explicitly allows farmers to replant
seeds or exchange seeds saved by them. But the bar on patenting plant varieties does
not prevent the patenting of genes, DNA fragments, research tools, processes, and other
technologies required for creating genetically modified plant with desired traits. Under
TRIPS, patents should be available for all technologies; interpreting exceptions is a con-
tentious issue. Technically, genetically modified plant varieties with desired traits can
be sold as hybrids and farmers will have to buy seeds for second and later generations if
they want to get good yields. Thus, patenting of technologies, materials, and processes
and selling the cultivars as hybrids make the bar on patenting plant varieties irrelevant
to a great extent.
Globally, public-sector involvement in the seed sector has also diminished. In
China, the public sector competed with the private sector (Monsanto) in Bt cot-
ton; it developed and delivered Bt cotton varieties, resulting in lower seed prices for
farmers.21 In India, the public sector failed to produce Bt cotton, but private firms
developed over a thousand legal hybrids, which now dominate cotton farming in
India. Monsanto became the dominant player by licensing technology to different
seed companies for incorporating it in many hybrids. In Latin America, Monsanto's
efforts to seek royalties on GM crops became a contentious issue. Monsanto failed
to get patents for transgenic soy in Argentina, but the company had obtained pat-
ents in Europe. Monsanto argued that it was entitled to receive royalties from
Argentinean exports of soya meal to Europe as it had patents on GM soya in Europe,
but this claim was rejected. In Monsanto Technology LLC vs. Cefetra BV (2010), the
European Court of Justice ruled that Monsanto could not bar the imports of the
soya meal from Argentina. Since 1996 Monsanto has held a European patent relat-
ing to a DNA sequence, which, when inserted into the DNA of a soya bean plant,
confers resistant to the herbicide glyphosate. This herbicide is widely used in agri-
culture. But the DNA in the soya meal was not performing this function, i.e., pro-
viding resistance to herbicide glyphosate. The European court ruled that the patent
could be enforced only in cases where DNA was performing the function that was
covered by the patent.22