16th February 2004

Wheat Biopiracy Challenge in the Supreme Court of India

Today, the 16th February 2004, Honorable Chief Justice Bench comprising of Justice V. N. Khare, Justice Laxmannan and Justice S. H. Kapadia heard the matter of the Public Interest Litigation (PIL) filed in the Supreme Court of India by Dr. Vandana Shiva and Research Foundation for Science, Technology and Ecology (RFSTE) which came up immediately after notice was served to the four Ministries of the Government of India on 13th February 2004 by the Foundation attorneys' Ms Pinki Anand and D.S. Gobhardhan. The attorneys argued for direction for protecting various Indian Wheat varieties.

The question of immediate urgency was in respect of government challenging the grant of patent (No. EP 445929 B1) to wheat plants and products based on an Indian wheat, which Monsanto calls "Nap Hal" by 21st February 2004 in the European Patent Office (EPO). Under the EPO, objection to the grant of patent have to be filed within 9 months, which expires on 21st February 2004. On 21st May 2003, the EPO in Munich granted patent with the number EP 445929 B1 and the simple title "plants. The patent holder is Monsanto, better known as the world's largest trader in genetically engineered plants. The patent covers wheat exhibiting a special baking quality. The cause of this special quality lies in a naturally occurring combination of genes, which reduces the percentage of protein in the grains. Wheat with these characteristics was originally developed in India. Now Monsanto holds a monopoly on the farming, breeding and processing of this type of wheat.

Assuring the Supreme Court bench presided by Chief Justice, Mr. Mukul Rohatgi, Additional Solicitor General assured immediate steps would be taken and whatever is necessary will be done in respect of protection of traditional Indian wheat including filing challenges to the patent in the EPO. The next date of hearing has been fixed for 23rd February 2004, by which time the government has made a commitment in the court that they will do the needful since the matter concerned is of national interest and it is of grave concern to India.

The photograph of the wheat variety used in the patent (taken from European Gene Bank) along with an Indian wheat variety from the collection of Navdanya, a National Biodiversity Conservation Movement, founded by the petitioner, was shown to the Bench to highlight the similarity. While NGO's have been working nonstop to reverse Monsanto biopiracy, the Government has taken no action to either identify the variety or challenge the patent.

In reply to a Parliamentary Question (starred question no. 8 dated 21st July 2003) on the Monsanto wheat Biopiracy, Union Minster of Agriculture, Mr. Rajnath Singh has replied that we have nothing to worry. This needs to be reexamined. Historical records are there right from mid 90's century, which shows that Indian wheat was exported widely and Indian wheat seeds have traveled to different continents and the wheat used in the Monsanto patent is an Indian variety. The patent is a blatant example of biopiracy.

The European patent itself shows that Monsanto patent is based on the "Indian variety", which they call Nap Hal. The European Wheat Database also shows that the "Nap Hal" the traditional cultivar/ landrace was collected from Indian and the USDA database shows that it has been collected from Uttar Pradesh (India) in 1948.

Not challenging this patent will immediately rob India of export market for our wheat and wheat products. If this European patent on wheat is not challenged, India will not be able to exports its own wheat and subsequently may have to be on the mercy of Unilever and Monsanto for Wheat seeds, breeding process, processing and for bread.

The decisive patent claims concern soft-milling wheat in which the relevant genes are either not present or not active. The patent means in fact a monopoly on the genetic characteristics of Nap Hal plants and on all wheat plants, which are crossed with Indian variety. In addition, it covers the flour gained from this wheat as well as "dough produced from flour…" and "biscuits or the like, produced from flour…".

In a patent (EP 518577) filed for at the same time by Unilever/ Monsanto and issued in Europe back in 1996, claims were then made expressly to the use of flour to make traditional kinds of Indian bread such as chapattis. The government had failed to challenge the 1996 chapatti patent. Monsanto statement that these patents "no longer hold good" because Monsanto is trying to get out of the wheat business in Europe is blatantly false since a patent is a legal monopoly right which stands till it is challenged and revoked and if unchallenged will merely be transferred to the corporation which buys Monsanto's wheat business.

India cannot wait forever. A legal and administrative process must be organized to protect our indigenous knowledge and resources.

Indian cannot wait for mercy of a corporate giant for its own seed. Plants are not inventions. Each and every international treaty including TRIPS/ WTO, Convention on Biological Diversity (CBD), and the Indian Patent Act, 1970, allows exclusion of plants from patentability. In order to ensure access to all to our traditional knowledge and resources for livelihoods and food security.

For the Indian Minister to say that we have nothing to worry is a "big worry". The response of the Government assuring immediate action is most welcome.

{A photo of the Nap Hal variety (from the Eurorpean gene Bank) is attached}

For any further information:
Dr. Vandana Shiva
Research Foundation for Science, Technology and Ecology (RFSTE)
A - 60, Hauz Khas,
New Delhi - 110016
Tel: 0091-11-26968077, 26561868
Fax: 0091-11-26562093,
Email: vshiva@vsnl.com ; rfste@vsnl.com