The real reasons for the second amendment of the Indian Patent Act.

• Author: Shiva, Vandana
• Position: The Monsanto Amendment

India has amended its Patent Act for the second time since the Trade-Related Intellectual Property Rights agreement (TRIPs) came into force. The first amendment was to introduce exclusive marketing rights and mail box arrangements to implement Article 70.8 and 70.9 of TRIPs.

The issue is clearly not product patents in medicine, since these will in any way not be granted until 2005. The major change in the patent regime achieved through the second amendment is not in the area of medicines and drugs but in the area of seeds and plants, especially genetically engineered seeds.

Methods of agriculture and plants were excluded from patentability in the Indian patent act to ensure that seed, the first link in the food chain, was held as a common property resource in the public domain and farmers' inalienable right to save, exchange and improve seed was not violated.

There are two amendments in the definition of what is not an invention that have opened the floodgates of patenting of genetically engineered seed.

According to Section 3(i), the following is not an invention:

"Any process for the medical, surgical, creative, prophylactic or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products."

The new omission of "plants" from this section implies that a modification of a plant can now be counted as an invention and can hence be patented. Thus the method of producing Bt cotton by introducing genes of a bacterium Bacillus thuringiensis in cotton to produce toxins to kill the bollworm can now be covered by the exclusive rights associated with patents.

In other words, Monsanto can now have Bt cotton patents in India. The Amendment of 3(i) is clearly a Monsanto Amendment.

The Second Amendment has also added a new section, 3(j). This is also a Monsanto Amendment since it allows production or propagation of genetically engineered plants to be counted as an invention, and hence patentable. Section 3(j) excludes as inventions "plants and animals ... including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals." However, the emergence of new biotechnologies is often used to define production of plants and animals through genetic engineering as not being essentially biological. Without a clear definition that all modifications of plants and animals are essentially...