India needs to continuously improve its agricultural productivity to feed its current and future populations. Apart from various new challenges faced by modern day farms in India like new pests, diseases and climate change, there are also related socio-economic factors which need to be countered by the sector. Factors like increasing urbanisation leading to a paucity of farm hands, depleting arable land due to migration and infrastructure development and a fast reducing water table all factors which require producing more from less.
Without the widespread adoption of modern farm technology, this objective looks nigh impossible. Historically also we have seen agricultural revolutions like the green revolution, the dairy revolution, cotton revolution, etc., which have been a consequence of innovation and application of modern technology. Hence it is safe to assume that without innovation and widespread application of the same to agriculture, it would be nigh impossible to achieve national food and nutritional security.
The government, in its own wisdom, has established a robust, equitable and dynamic IPR regime over last two decades in consonance with the national development priorities and in conformity with international treaties and conventions. The statutes governing different kinds of IPRs in India are The Patents Act, 1970, Trade Marks Act 1999; Designs Act 2000, Geographical Indications of Goods (Registration and Protection) Act, 1999, Copyright Act 1957; Protection of Plant Varieties and Farmers’Rights Act 2001; Semiconductor Integrated Circuits Layout-Design Act 2000 and Biological Diversity Act, 2002.
The statutes which directly impact the Intellectual Property protection in agriculture are The Patents Act, 1970; Copyright Act 1957; Protection of Plant Varieties and Farmers’Rights Act 2001 and The Biological Diversity Act, 2002. The Patents Act 1970 was amended in 1999, 2002 and 2005, introducing product patent regimes that effectively allowed patenting biotechnology related inventions. The Protection of Plant Varieties and Farmers’ Rights Act further enables protection of plant varieties by breeders as a tool to encourage investments for innovation as it provides for protection and monetisation of such innovations.
Since the PPV&FR Act became operable in the year 2007, total number of applications received for registrations till 7th June 2016 number 11,642, while the registrations granted till 31st March 2016 are 2,193. The number of applications made and registrations granted in various other countries are as follows:
• Australia: applications made were 8,341 against which 1,423 were accepted and 2,437 were granted
• United States of America: applications made were 13,492 against which 7,302 were granted; and
• Japan: 30,284 applications were made and 24,275 registrations were granted.
The variety protection acts have been in force in these countries from 1994 (earlier Act is from 1987), 1970 and 1998 respectively. In light of the new IPR policy of the government of India, the speed of registration of varieties will have to move up to keep pace with other countries as well as the policy of the government.
The Government of India announced the National Intellectual Property Rights Policy on 12th May 2016, recognizing that creativity and innovation is a constant in growth and development of any knowledge economy. The goal of the all-encompassing IPR policy is to promote a holistic and conducive eco system to catalyse the full potential of intellectual property for India’s economic growth and socio-cultural development, while protecting public interest.
Such a policy is expected to nurture the IP culture, guiding and enabling all creators and inventors for realising their potential for generating, protecting and utilising intellectual property which would contribute to wealth creation, employment opportunities and business development.
The said IP rights policy aims to integrate IP as a policy and strategic tool in national development plans. It foresees a coordinated and integrated development of IP systems in India and the need for holistic approach to be taken on IP related legal, administrative and institutional and enforcement matters. While DIPP shall be the nodal point to co-ordinate, guide and oversee the implementation and future development of IPRs in India, the responsibility for actual implementation of the plan of action is envisaged to remain with the Ministries/Departments concerned in their assigned sphere of work. Public and private sector institutions and other stakeholders, including state governments, will also be involved in the implementation process.
The policy has crafted the general outline of IPR, its importance and its necessity in the present context. It sets out its vision and mission statements and identifies seven objectives as the instruments for the successful completion of the mission and realising the vision. These objectives are IPR awareness, outreach and promotion, generation of IPRs, legal and legislative framework, administration and management, commercialisation of IPR, enforcement and adjudication and human capital development.
The new IPR policy is quite positive in relation to the agri-biotech sector. We may expect impetus to research and innovations in this field in the near future considering harmonisation on interplay with IP laws and other laws as referred to in Objective 3 of the policy. Agriculture and agricultural biotechnology find mention at several places in the policy.
These are designated as national priority areas to focus on. Food security is part of the mission statement. The policy recognizes that areas like ag-biotech have significant potential for innovation. The intention to streamline the approval process at the National Biodiversity Authority (NBA) for expeditious grant of IPR, with a meaningful interface, is very encouraging. However, it was with a sense of both grave concern and disappointment that we read the licensing guidelines and format for GM technology agreements published on the DAC website on 24th May 2016 for comments and suggestions after the government rescinded the Gazeette Notification dated 18th May 2016.
Besides being contrary to the stated aim of the IPR policy, the draft notification posted on the website has no basis in law, seeks to circumvent national legislations, violates international treaties and the Indian Constitution and ironically completely misses the concept of SEPs and FRAND licensing and processes involved. The said guidelines are a signal to the world at large that India is not a favourable destination for making investments in India under the Prime Minister’s ‘Make in India’ programme, besides showing scant regard for fostering an environment for encouraging investments in research & development, intellectual property rights and offering individual choices to customers.
The said guidelines are not in the interest of IP holders, farmers of the country. They will disincentivise investment in research and will effectively slow, if not stop, flow of technology to Indian agriculture. This is also indicative of the contradictory positions being taken by the different wings of the government. It is hoped that better sense will prevail and the draft guidelines are withdrawn in the interest of research, IP creation for the agricultural development, farmers welfare and food security of the nation. In the unfortunate event that the guidelines translate into policy, the industry will be constrained to put their investment plans on hold impacting the development of solutions for application to national agriculture for farmers’welfare.