Seed innovation and intellectual property

SHALINI BHUTANI

INNOVATION implies something new, whether a method, concept, idea, product or process. The Covid-19 pandemic necessitated quick innovation. Thus much of the dis-cussion on innovation in these times has been in the health sector. But there are other areas that require the human race to be innovative to deal with the humanitarian and environmental challenges, such as in the agricultural and allied sectors. This paper focuses on issues around innovation in the seed sector. It focuses on the connected experiences with intellectual property (IP) in this area in India.

India declared 2010-20 as the ‘Decade of Innovation’. The then Prime Minister (PM) committed to strengthening science, technology and innovation (STI) capacities, with an objective to increase gross expenditure on research and development (R&D) to 2% of GDP by 2020. There-after, the next PM announced the ‘Make in India’ initiative in 2014.1 The nomenclature gave the impression that it would support domestic producers. Interestingly, amongst the 25 sectors it covers, it does not cover the agriculture sector per se.2 Though it has biotechnology as well as food processing as focus areas. The initiative is silent on supporting farmers as producers to ‘make’ their seeds.

In 2019, the NITI Aayog launched the India Innovation Index.3 This is with the intent to push states to develop their strategies to foster innovation and to benchmark their performance. The performance is gauged by knowledge outputs and knowledge diffusion. Among other things states are annually asked to enumerate the grassroots innovations in their areas. They are also asked to give the number of IP – such as patents, trademarks and geographical indications (GIs), filed, and also the number of IP laws if any made. The more of these, the better the performance is considered.

Three key things flow from the above. First, the farmers themselves are not seen as innovators but as end receivers of technology. Second, innovation and IP are viewed together and as inseparable. In other words, the orthodoxy is that unless IP is granted and protected by the state, through law and its enforcement, innovation cannot be spurred. Third, the focus on IP signals India’s ambitions for GVC integration, given that technology and knowledge transfers in these set-ups demand such an environment.4 So does the seed industry. As stated by the International Seed Federation (ISF), seed is a globally traded agricultural product, with international seed trade having increased tenfold during the past 15-20 years.

Therefore, when both government and industry talk of an ecosystem for facilitating innovation, they point to the ‘reforms’ in the country’s IP laws and policies. In the context of the seed industry, laws such as the Patent Act (post amendments in a WTO era) and the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001, as well as the National Intellectual Property Rights Policy, 2016 are oft discussed.

Globally the standards for IP protection are set at the World Trade Organization (WTO). Its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) lays down the IP framework for innovation and trade in IP-protected products. TRIPS introduced IP into the multilateral system of trade for the first time. This was based on the demand from seed MNCs and corporate plant breeders for IPR over crops, either through patents or plant variety protection (PVP). The TRIPS Agreement has come under severe criticism from farmers’ groups even before it came into force in 1995. The international farmers’ movement condemns the very idea of private rights on seeds that WTO perpetrates, as farmers’ innovation is based on the principle of sharing of both knowledge and seeds.5

Farmers in India and the global South have repeatedly raised the issue of how TRIPS promotes ‘biopiracy’, by allowing IP on seeds and planting materials without due recognition or recompense to the farmers that are the source of the raw material for the industry. That is why in 2006 India also proposed a ‘biodiversity amendment’ of TRIPS.6 This is not the only time that India has asked for the global IP regime to be adjusted to meet the challenge of the day.

The informal seed sector in India is still a large(r) portion of the source of seeds for small and marginal farmers. Farmer-to-Farmer (F2F) connections help keep alive their seed innovation. It is a form of diffusion of seed and a social network. It is possible as long as farmers’ seed freedoms are protected, and not restricted by any IP or seed laws. The continual free transfer of planting material and related knowledge amongst farmers is the basis of developing and adapting plant varieties in farmer-managed seed systems (FMSS). The selection of varieties is based on farmers’ own needs and priorities. Moreover, it is not motivated by any property rights on seeds. FMSS predate the IP system and any laws on either patents or PVP.

Historically farmers have never asked for any IP, but the seed industry does. There is a popular pushback with more informal seed networks emerging in many states, not only sharing and exchanging seeds but also actively embracing ‘open-source seeds’ in reaction to IP on seeds and planting materials.7

The seed innovation of India’s farmers is acknowledged by the state, even if limitedly, in the following ways:

* Public Accessions: These are essentially collections from farmers’ fields undertaken by public scientists and stored ex situ by the National Bureau of Plant Genetic Resources. According to the ICAR’s Annual Report 2020, the base collection of the National Gene Bank has a total of 4,46,636 accessions, which is living evidence of the seed diversity from FMSS.

* Public Rewards/Recognition: Under the PPV&FR Rules, three categories of plant genome saviour prizes are given to farmers for conservation. These are granted annually to reward and recognize individual farmers or farming commuities or by the MoA&FW through the PPV&FR Authority using the National Gene Fund.

* Benefit Sharing Provisions: Both the PPV&FR Act and India’s Biological Diversity (BD) Act have legal provisions to impose terms and conditions on users/accessors for sharing (of either monetary or non-monetary) benefits with the provider farmers/villages/local communities. FMSS are the space from which the industry accesses samples, for its seed tech-nologies to be developed. Thereafter, the finished proprietary products are sold back to the very same farming communities as consumers.

India chose to provide IP through a PVP law, as against patents, for innovations in the field of plant varieties. The PPV&FR Act allows for varieties that have been traditionally cultivated and evolved by farmers in their fields, to be granted IP (upon satisfying the DUS criteria – distinctiveness, uniformity and stability). The PPV&FR Act though unique in recognizing farmers as breeders, nonetheless, institutionalizes the idea of IP on plants. The law also recognizes the farmers’ right to sell seeds even of IP-protected varieties.

As per the Authority’s data, as of March 2021, 1807 farmers’ varieties (FVs) have been granted IP in the form of plant variety certificates (PVCs), out of a total of 4405 certificates issued. FVs have little or no support to be mainstreamed. Also, the language of ‘new’/‘novelty’, words synonymously used with innovation, is reserved for varieties satisfying the NDUS criteria. Diffusion of innovation theory tells us that for an adopter of innovation, the person must believe that s/he is using something new. Under the category of ‘new varieties’ the maximum PVCs have been granted to seed companies, followed by ICAR and SAUs.

During the pandemic March 2020 onwards, the work of the PPV&FR Authority for granting IP continued albeit at a slower pace. To prevent the spread of Coronavirus the proceedings before the Registrar were conducted online; some were postponed. Meanwhile, the time limit for submission of seeds for the mandatory field tests (for checking DUS) of varieties for which PVP-protected is applied for was extended. The extension of time limit for filing of applications, seed submissions, etc. was terminated from 15 March 2021, upon resumption of full functioning of the Registry. The WIPO Covid-19 IP Policy Tracker provides information on measures adopted by IP offices in response to the pandemic, such as the extension of deadlines.8

Prior to the pandemic, several major challenges with IP in the seed sector had arisen in India. These had also led to a series of court cases; the two most notable in this context are mentioned below.

The first is a set of legal actions between the US MNC Monsanto and the Indian group of companies of Nuziveedu Seeds Limited (NSL).9 These arose over the payment of royalty on Monsanto’s proprietary Bt technology in cottonseed that was sublicensed to the latter. Cottonseed is 20% of India’s INR 28,700 crore seed sector, which is dominated by Monsanto’s GM seeds. Monsanto claiming patent rights on its Bt technology filed for a temporary injunction against NSL to prevent it from using the registered trademark ‘Bollgard’ and ‘Bollgard II’ and from selling and/or using seeds/hybrid seeds bearing the IP-protected technology.

The agreement between the two was terminated in November 2015, followed by legal challenges by both sides. However, a settlement was reached between them on 26 March 2021, the details of which are not publicly known as of date.

The second set of cases are those filed by the wholly owned subsidiary of the US food and beverage MNC PepsiCo India Holdings Pvt Ltd (PIH) in 2018-19 against farmers in Gujarat10 for allegedly violating its IP on PVP-protected potato varieties grown for its brand Lay’s potato chips business. PIH was demanding a relief from courts in the form of a permanent injunction restraining farmers from using the variety registered under the PPV&FR Act; and passing off such products being those of PIH, in violation of the company’s rights over the trademark FC5.

The matter hinged around the interpretation of the key farmers’ rights provision, Section 39(i)(iv) in the PPV&FR Act that guarantees farmers’ seed freedoms. In May 2019, Pepsi India withdrew the cases due to both public and political pressure, though not without expectation of a long-term resolution from the central government with respect to the MNCs IP interests.

Irrespective of the legal outcomes of these cases, what is evident is that seed companies, whether foreign or Indian, will pursue an aggressive legal route for the implementation and interpretation of IP laws to protect their so-called ‘innovations’. It is equally evident that courts are reluctant to offer their legal interpretation, while the government wishes to ease business for investors and ‘innovators’. It is thus established that constant vigilance will be required from farmers and civil society to keep the rules, regulations, and related notifications under the PPV&FR Act as farmer friendly as originally intended by the law.

On 14 March 2020, the GoI declared Covid-19 a ‘disaster’, invoking the Disaster Management (DM) Act, 2005. On 22 March 2020, the GoI announced a fourteen-hour voluntary ‘janata (people’s) curfew’. This was followed by a complete national lockdown with effect from 25 March 2020.

Meanwhile, after representations from the industry that provides agricultural inputs, some relaxations were made in this period. During the Lockdown I phase (25 March to 14 April) 28 March onwards, agriculture and allied sectors were exempted from the lockdown. This meant that farming operations on the field, procurement agencies and MSP operations, manufacturing and packaging units of fertilizers, pesticides and seeds, as well as intra and inter-state movement of harvesting/ sowing machines and other implements were allowed. On 4 April shops of agricultural machinery, spare parts and repair, truck repair shops on highways were also exempted from lockdown. During the Lockdown II phase (15 April to 3 May), from 20 April agricultural businesses, including dairy, aqua-culture and plantations were allowed. As part of business continuity measures, and after consideration of the requirement of seed/planting material of the importing parties,11 the MoA&FW decided to extend the validity of import permissions till September 2020.

However, from village assessment reports and rapid situation analysis carried out by several research organizations during the lockdown and beyond, the difficulties faced by smallholders with respect to seeds came to light.12 The challenges in the summer and kharif seasons pertained mainly to farmers’ access to agricultural inputs and credit. Media reports also confirmed that in the initial days, despite relaxation of the lockdown measures for seed supply, there was major disruption of the value chain of agricultural inputs.13

As per the Grant Thorton and FICCI report (June 2020), the seed industry witnessed a 15-20% drop in sales due to disruptions in the supply chain.14 The strict safety measures contributed to a reduction in productivity at seed processing plants by as much as 50%. Nonetheless, the input need of seeds and fertilizers was somehow met and there was a good Kharif harvest. The impressive national production figures, particularly of major crops conceal the many stories of small holders challenged in getting timely and affordable seeds for the season. The losses faced by small growers of those other that major cereals, for instance, perishables like vegetables, fruits and flowers are yet to be recovered.

NGOs/CSOs played a big role in making possible the delivery of immediate food and agricultural needs. The Indian Seed Sovereignty Alliance used the time well to continue to organize its members and hold seed exhibitions, even though in virtual mode. Some state governments, as in Kerala through its Agriculture Department even undertook free distribution of vegetable seeds and plant saplings for kitchen gardens, encouraging people to do cultivation while locked down at home.15 This was also a time when decentralization of the seed, food and farm systems was being proposed.

During this last year the seed industry rather than focusing on new products, has looked at innovation as seeking the way for new profits and growth despite the lockdowns. R&D activities took a hit. Reduced staffing in R&D facilities, difficulties reaching field trials or even lack of hotel accommodation in the vicinity of field trials are cited as reasons for the delay of introduction of new varieties to the market in the near future.16

The priority for seed companies was first to overcome the problems posed by the lockdown itself. In
March 2020, the International Seed Federation (ISF) urged governments to facilitate the international movement of seed and not to impose restrictive measures.17

The Asia and Pacific Seed Association (APSA), which is the largest regional seed association in the world, undertook surveys to determine the impacts of the Covid-19 lockdowns in the region.18 The initial survey was conducted in April 2020 from more than a dozen countries in the Asia-Pacific region, and the follow-up survey done in May 2020. The biggest concern of APSA has been the negative impact on inter-country seed trade. The matter become serious for countries relying on import of seeds for their food production.

According to the Federation of Seed Industry of India (FSII), the Indian domestic seed industry is the sixth largest in the world, which is estimated to be worth $2.6 billion dollars.19 The seed industry leveraged the importance of seed as the starting point for the food supply. Therefore, it urged that the central and state governments ensure uninterrupted and timely global and domestic movements of farm inputs like seeds, agricultural produce and food. It also asked for opening of ‘green lanes’ or special food lanes at national and state toll booths, checkposts and on highways where food and agricultural input delivery vehicles can pass unhindered and are not subjected to roadblocks.20 It also insists on robust IP for more technological innovations.21

The National Seed Association of India (NSAI) believes that to help farmers attain self-reliance as per GoI’s Atma Nirbhartar plan for the rebuilding and for the agriculture
sector to flourish, it needs rapid modernization and digitisation to depend less on manual labour. As Covid-19 has challenged archaic ways, it is an opportunity to change the way we approach agriculture.22 NSAI also argues on the lines of the latest ‘reforms’ in the agricultural sector for more export orientation.23 On the issue of seeds and IP and the respective legislation, the NSAI also seeks ‘equivalence’ between the two laws on patents and PVP.24

The country’s success in developing a vaccine for Covid-19 is being seen as an endorsement of the policy focus on innovation. There is continuing need for innovation to build back the post-pandemic economy. But the country’s experience with IP has to be factored into the discussion. How the country fares on innovation is judged by global standards and the direction of innovation is reinforced by how international fora such as WTO members, trading partners and potential investors view India and its IP environment.

The issues that the seed industry raised were those faced by them as business enterprises. These are very different from those faced by smallholders on seeds. Thus, the ‘new normal’ in the seed sector is not looking very different from the pre-pandemic situation. While as before the emphasis is on hybrid/GM seeds and the market integration of smallholders. There is a perceptible shift towards high-tech and digital agriculture. This reinstates the capital-intensive agro industrial model. Yet ICAR could have taken this crisis to define more social and agro-ecological responsibilities for the public sector and insist likewise on the large corporate sector.

The current model does not give its due to farmers’ seed innovation, and even if it seems to, it does so by attempting to bring it under IP systems. While seeds are selected, varieties are adapted by farmer-breeders out on the fields, under the open skies in the context of their lived realities (unlike formally established incubation centres under innovation missions) their knowledge is considered extant or too ‘traditional’. What are regarded as ‘novel’ and ‘inventive’ are the agricultural innovations taking place in urban centres, inside formal agricultural systems, particularly corporate laboratories.

The Pusa Complex in the capital city of the country was once the motif of agricultural innovation, only to be displaced by the headquarters of MNCs in the urbanscape of Gurugram, or the head offices of seed companies in urban Hyderabad and Bengaluru city.

In sharp contrast to this many in the NGO/CSO sector stayed committed to supporting biodiverse informal seed supply systems. For disaster-proofing the seed system, the need to support household and community seed security cannot be emphasized enough. Also, non-centralized seed production and distribution would be less prone to disruption. Re-localization would also encourage the use of local varieties and ensure availability of seed in the villages. Seed innovation and IP policies will have to be more responsive to local needs, that would also contribute to the resilience of agri-food systems.

Footnotes:

1. https://www.makeinindia.com/

2. https://www.makeinindia.com/sectors

3. http://niti.gov.in/node/875

4. https://icrier.org/pdf/Working_Paper_
386.pdf

5. https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm

6. https://grain.org/en/article/2198-developing-countries-propose-trips-amendment-on-disclosure

7. Apna Beej network by the Centre for Sustainable Agriculture.

8. https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/by-country?countryId=107

9. Monsanto Technology LLC v. Nuziveedu & Others AIR 2019 SC 559.

10. PIH versus Bipin Patel, Suit No. 23 of 2019; PIH versus Vinod Patel, Suit No. 24 of 2019; PIH versus Chabilbhai Patel, Suit No. 25 of 2019; PIH versus Haribhai Patel, Suit No. 26 of 2019

11. https://www.pib.gov.in/PressReleasePage.aspx?PRID=1615490

12. https://coronapolicyimpact.org/2020/04/07/indias-villages-during-the-covid-19-pandemic/

13. https://www.thehindubusinessline.com/news/seeds-fertiliser-sectors-impacted-by-disruption-in-transportation/article31295891.ece

14. https://www.grantthornton.in/globalassets/1.-member-firms/india/assets/pdfs/decoding-agriculture-in-india-amid-covid-19-crisis.pdf

15. https://timesofindia.indiatimes.com/city/thiruvananthapuram/agri-dept-to-provide-2-5l-seed-packets-for-kitchen-gardens/articleshow/74973089.cms

16. https://knowledge4food.net/asia-pacific-seed-trade-slowly-emerges-from-covid-19-lockdowns/

17. https://www.worldseed.org/wp-content/uploads/2020/03/20200316_Covid_Seed-Movement.pdf

18. https://web.apsaseed.org/asia-pacific-seed-trade-reeling-from-covid-19-lockdown-survey

19. Dr. Shivendra Bajaj in the online seminar on Impact of Covid-19 on Seed Trade organized by APSA on 26 May 2020: https://www.apsaseed.org/wp-content/uploads/2020/07/Summary_-Session-1.pdf

20. https://fsii.in/wp-content/uploads/2020/04/FSII-Newsletter-March-2020.pdf

21. https://fsii.in/robust-intellectual-property-rights-leads-to-more-technological-innovations/

22. https://fsii.in/indias-tryst-with-atmanirbharta-in-agriculture/

23. https://nsai.co.in/post/aatmanirbhar-seed-sector-needs-be-more-export-oriented

24. https://nsai.co.in/post/new-seed