No benefit challenging US wheat patent, Centre tells Supreme Court

The Centre has told the Supreme Court that it was not advantageous to contest the United States’ patent of a wheat variety, similar to Indian ‘Nap Hal’, as the patent granted to Monsanto had already expired in 2010.

In an affidavit, Indian Council of Agricultural Research reiterated the recommendations made by co-ordinate group set up under the chairmanship of Secretary, department of Agricultural Research and Education. The committee had in a report prepared in 2007 said that there was hardly any advantage in contesting the patent as it was set to expire in 2010.

“It further noted that the biscuit industry in India was not adversely affected, in any manner, due to this patent. It, therefore, endorsed the stand expressed in the affidavit of March 2004. It recommended that the huge costs involved in litigation in the US in challenging this patent were unwarranted,” the affidavit said.

“The US patent number 5859315 had expired with effect from 14.2.2007 on account of failure to pay maintenance fee. Thus, the only subsisting patent in relation to Nap Hal variety of wheat was US patent no 5763741 (issued on 9.6.1998)…. Later the US patent no 5763741 has also expired on July 5, 2010,” it said.

In 2004, a PIL was filed by NGO Research Foundation for Science Technology and Ecology in the apex court seeking direction to the Centre to challenge the patenting of wheat by US company Monsanto before the European office since the wheat variety sought to be patented was derived from traditional Indian wheat referred to as ‘Nap Hal’.

The government had then maintained that the ‘Nap Hal’ land race was not covered by the European patent and the wheat variety continued to be available to Indian farmers and researchers.
Further, it was stated that the patent was valid only in Europe and did not encroach on Indian interests.

The petitioner, however, had countered by submitting that the Indian variety was special since it contained low gluten and elasticity characteristics of soft milling wheat used essentially in manufacturing of biscuits.

It further contended that India’s treaty obligations under the Patent Cooperation Treaty would entitle Monsanto to obtain a patent in convention countries on the strength of its European patent.

Allaying the fear, the government then submitted that the Patent Cooperation Treaty did not undermine the patent law of each individual country.

In its fresh stand, the government submitted that the pending petition became infructuous and no decision was required to be taken in this regard.