Genetically Modified Organisms and Intellectual Property Rights in India: The Patent-Plant Variety Divide

Plant varieties’ exclusion from patentability under the Patents Act, and their relocation to the sui generis regime of the Protection of Plant Varieties and Farmers’ Rights Act , (PPVFR Act) is now, a settled theorem amongst Indian IP scholars. Analysis on genetically modified (GM) crops time and again restates this divide and concludes with Monsanto Technology LLC v. Nuziveedu Seeds Ltd. as its illustrative precedent. What this proposition has not asked is a narrower but more consequential query: if the Patents Act will not grant a product legal right over a GM seed, how exactly does a technology developer actually get paid for it; and what happens when that payment procedure runs into a statute which was never created to regulate it? The Patent-PPVFR divide has not resolved the question of profit extraction from GM technology; it has relocated that question onto private licensing contracts, which the government has then had to regulate through executive price-control orders that are outside the ambit of both the statutes. The Nuziveedu precedent is best read not as a case about patent eligibility, but as a case about what happens to the lacuna that the eligibility rule creates.