Taking Monsanto to court: legal activism around intellectual property in Brazil and India

ABSTRACT

This article analyzes legal disputes involving Monsanto's patents and royalties for Roundup Ready soybeans, Bt cotton and Bt eggplant in two important GM-crop producing countries. It argues that Monsanto implemented private royalty collection systems adapted to the specificities of crops and agrarian conditions in Brazil and India. The corporation thus enjoyed in practice the same extraordinary degree of IP rights in these countries as in the United States irrespective of significant differences between patent and plant variety laws of both countries and the US. NGOs and farmers' movements played a key role in drawing public attention to these issues while challenging the legality of the patents and royalty collection systems.

KEYWORDS:

• Seed activism
• legal activism
• intellectual property
• GM crops
• Brazil
• India

1. Introduction

The US agrochemical and biotech corporation Monsanto, bought by the German chemical giant Bayer in 2018,¹ is no stranger to controversy. Ever since the commercial introduction of genetically modified organisms (GMOs) in 1996, Monsanto has aggressively pursued its commercial interests on the market, in the fields and in courts, at home and abroad. Monsanto not only filed for patent protection for its GM plant varieties in various jurisdictions, but also devised and implemented unprecedented systems for the collection of royalties and the surveillance of farmers. It has not shied away from suing farmers, including its own customers, for patent infringement, and has had, in the words of environmental activists Neil Young and Daryl Hannah, an ‘uncanny record of winning lawsuits’ (Young and Hannah 2018).² While Monsanto-Bayer has suffered several setbacks in 2018–2019 in US lawsuits involving the toxicity of its flagship herbicide Roundup³, it has won every single intellectual property (IP) lawsuit filed in the United States and Canada since 1997.⁴ The most well-known cases involving patent rights and biotechnology include Monsanto v. Schmeiser (Supreme Court of Canada 2004) and, more recently, Bowman v. Monsanto (US Supreme Court 2013). In both cases, the courts ruled that Monsanto’s patent rights extended to any seed containing the patented trait, beyond the first generation and irrespective of how the seeds had been acquired.⁵

The first lawsuits on the issue of IP rights in biogenetic material in the United States and Canada served as the legal testing ground for the controversial extension of patents to plants following the 1985 landmark court judgement establishing the right of plant breeders to obtain protection under the US Patent Act (Ex parte Hibberd 1985). By espousing a strict interpretation of patent law favouring the interests of technology developers over those of farmers, the US and Canadian courts consolidated an unprecedented proprietary regime in agriculture (Caduff and Randeria 2010; Pechlaner 2012). These cases effectively ended the debate in the United States and Canada on the complex questions raised by the extension of IP to self-replicating living organisms such as seeds and plants. However, far from being settled, these issues have re-emerged over the past decade, spurred by a new wave of litigation involving IP and biotech seeds in the leading GM-crop producing countries in the global South – Argentina, Brazil and India.

We analyze here three important legal challenges to Monsanto’s IP rights and practices in Brazil and India. A comparative study of the three key court cases in the two countries allows` us to draw broader conclusions about the unusual coalitions of actors involved in such legal disputes, the challenges of legal activism against powerful corporations and the role of the state in the legal governance of agricultural biotechnologies. As the architect of the new global proprietary regime, Monsanto is at the centre of the lawsuits we analyze here even though other companies followed suit and adopted similar IP models and practices. Today, agribusiness corporations increasingly use a business model based on licensing fees and royalties rather than on the sale of seeds. Farmers pay a technology fee to corporations, ‘in effect buying the new genes in a separate transaction from the seed purchase’ (Charles 2001, 152). In this way, corporations are licensing genes directly to each farmer.

The legal disputes examined here raise several issues of significance: Is it permissible for a corporation to charge royalties in the absence of a patent? Is it legal under Brazilian law to charge royalties on harvested grain as opposed to seeds, and does this practice violate a farmer’s right to save seeds? Are the amounts being charged as royalties excessive? What happens to plant genetic resources held by public institutions when these enter into public-private partnerships?

By analyzing the interplay between the main actors in these disputes – national and transnational private corporations, the state and civil society – we develop a threefold argument. First, we show that Monsanto designed and implemented private royalty collection systems adapted to the specificities of each country’s crops and agrarian conditions. We argue that these systems succeeded in ensuring that Monsanto would enjoy the same extraordinary degree of IP rights in Brazil and India as it does in the United States irrespective of the fact that the patent and plant variety laws of these countries differ significantly from those of the US. Second, we show how cunning states in the global South have been complicit in the implementation of these private biotech IP regimes (Randeria 2003a, 2007). As against countries of the global North that saw the new Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) as a floor, Brazil and India argued during the WTO negotiations that they considered it as a ceiling (Sell 2009). Yet, surprisingly, while implementing the new legal regime domestically, neither Brazil nor India took full advantage of the flexibilities available to them. Third, court challenges to patents and royalty collection systems have created issue-based, short-term alliances among actors with varied political agendas pursuing different long-term goals (Randeria 2007). For instance, small family farmers and large landowners in Brazil have come together to contest Monsanto’s monopoly claims in national courts, just as activists fighting for seed sovereignty have often found themselves unwittingly to be on the same side as Hindu ultranationalists in the battle against the corporation in India. We examine the strengths and ambiguities of such fleeting alliances between seemingly strange bedfellows while delineating the power dynamics shaping legal activism around IP and biotech crops. We also discuss why seed sovereignty activists are wary of IP activism, which they see as a double-edge sword.

This article contributes to the study of legal globalization and of the disputed and uneven transposition of global legal norms to the national terrain, where they are domesticated in varying degrees. Scholars, notably Sell (2009, 2003), have documented the prominent role played by global biotechnology firms in raising regulatory standards for IP protection worldwide. With the notable exception of Filomeno (2014) for South America, the country-specific forms taken by private IP regimes for biotech crops are less documented. Here we aim to examine the form taken by these regimes in two major GM-crop producing countries in the global South. We also aim to further the understanding of contemporary forms of activism around seeds (see Peschard and Randeria 2020) by focusing on one of its dimensions: legal activism contesting the extension of intellectual property rights regimes to biotech crops.⁶ While court cases in North America arising from the new legal regimes in agriculture have been the object of considerable academic interest (cf. Ewens 2000; Kloppenburg 2004; Müller 2006; Aoki 2008; Pechlaner 2012), in-depth analyses of similar developments in the global South are few and far between.⁷

Our research, which focuses on Brazil and India as the main GM-crop producers in the global South besides Argentina, combines ethnographic material and legal case analysis. Between 2015 and 2019, we conducted 90 interviews with the various parties involved in litigation – farmers and farmers’ representatives, rural union leaders, expert witnesses, government officials, industry spokespeople, plant scientists, NGO workers, civil society activists, legal researchers, lawyers representing both sides in the disputes as well as a judge. We analyzed a large body of legal documents, including sub-licensing agreements, expert witnesses’ reports, court documents and judicial decisions. We also attended public hearings, court sessions and parliamentary special commissions on related issues. We examine in detail three important court cases involving Monsanto. The first is a class action suit filed by Brazilian farmers’ unions in 2009 to challenge the charging of royalties on Roundup Ready (RR) soybeans. By the time the case reached the Superior Court of Justice⁸ in 2016, it had become a precedent-setting multibillion lawsuit. The second case is a public interest lawsuit and criminal prosecution involving accusations of biopiracy in the development of Bt brinjal (eggplant) in India. The third case is the tug-of-war between Monsanto, the Indian government and Indian seed companies over the regulation of Bt cotton seed prices and royalties, the object of multiple litigations in the Delhi High Court and the Competition Commission of India.⁹

Monsanto’s IP strategies in each of the two countries are the subject of the first section. The following section introduces the three cases in which the patents and royalty collection systems for GM biotech crops are being challenged in the courts. We then build on the concept of the cunning state (Randeria 2003a, 2003b, 2003c, 2007) to analyse the changing – and often contradictory – role played by the Indian and Brazilian states in both the implementation of these legal regimes and their contestation. The next section analyses the various litigants who filed the cases and the kinds of alliances they have formed. It presents the challenges and dilemmas of legal activism around IP issues for activists who may otherwise be critical of GM crops. The final section weighs the impact of legal activism around seeds in the courts as well as beyond them.

2. IP imperialism: biotech patents and royalty collection systems

  We take advantage of the grey area between what we know we can’t do

   and what we believe we can get away with.

    — UBS trader, quoted in Brown (2018)

The fine line trod by financial traders could well describe Monsanto’s approach to intellectual property. The introduction of transgenic crops in the early 2000s introduced wide-ranging changes to the legal landscape by allowing patents on plants and by extending plant variety protection worldwide. The grey area was vast, and Monsanto exploited it fully. Between 2002 and 2006, for example, the corporation charged an extremely high rate of royalties (or trait fees) on Bollgard I Bt cotton – equivalent to 75 percent of the total price of seeds. Remarkably it did so despite the fact that it did not hold a patent in India. In Brazil, Monsanto continued to charge royalties on RR soybeans for two and a half years after the expiration of its patent.

A comparative examination of Monsanto’s IP strategy shows that it operated on the principle that the patent rights it enjoyed in the United States should be enforced in other countries irrespective of their national laws. In a case filed against the Argentine Patent Office for rejecting one of its patent applications, Monsanto’s principal argument was based on the fact that it had been granted a patent in the United States. The judge held that Monsanto’s argument that biotechnological inventions are patentable in other parts of the world does not constitute sufficient grounds to uphold its claims since each country draws up its legal regime according to the minimum standards set in international agreements (Monsanto v. INPI 2015).

In this case, the minimum standards are established in the WTO TRIPS Agreement. According to Article 27.3(b), countries must provide patents on transgenic microorganisms and processes, as well as some form of IP protection for plant varieties. Brazil and India are both members of the WTO and signatories to the TRIPS Agreement. Like most member countries, they opted to limit patents to transgenic microorganisms and processes and to guarantee plant breeders’ rights – a less stringent form of IP protection – for plant varieties.¹⁰ In other words, they incorporated the minimum standards of protection set in the TRIPS Agreement while explicitly excluding plants and animals in whole or in part (GoI 1970; RFB 1996),¹¹ and, especially in India, introducing safeguards for farmers’ rights. The Brazilian Plant Variety Protection Act recognizes the right of farmers to keep and plant seeds for their own use. Small rural producers can also multiply seeds to give away or exchange, but only in dealings exclusively with other small rural producers (RFB 1997). The Indian Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act guarantees extensive rights for farmers to save, use, sow, re-sow, exchange, share or sell seeds, including seeds from protected varieties, as well as harvested materials, in the same manner as they were entitled before the coming into force of the Act (GoI 2001, Art. 39 iv). In contrast, the US legislation goes well beyond the minimum requirement set in the TRIPS Agreement and allows utility patents for sexually reproducing plants, even when these are developed through conventional breeding techniques (as opposed to genetic engineering).¹²

As a result of these differences in national legislation, Monsanto was engaged in a juggling act in order to obtain patents in countries like Brazil and India. This included substantially modifying the claims in its patent applications to conform to the Brazilian and Indian legislations. The claims are the most important part of a patent, because they define the nature of the object (a patent on a process or a product) and scope of protection granted to an invention. In all three cases – RR soybean, Bt cotton (Bollgard II) and Bt brinjal – Monsanto submitted patent applications in Brazil and India in which it claimed protection for cells, genes and/or whole plants. Monsanto’s legal team must have been undoubtedly aware that these were not patentable in Brazil and India but was possibly testing how national patent offices would interpret the new legislation. When Brazilian and Indian patent authorities issued technical reports pointing out that these organisms were not eligible subject matters under national laws, Monsanto’s response was to delete these claims and resubmit the application. For example, in the case of Bt cotton, the original patent application included 58 claims, covering ‘a plant’, ‘a progeny plant’, ‘a plant cell’, and ‘a plant tissue’ (Monsanto Technology LLC 2008). The Patent Office objected to all but three of the product claims, which concerned nucleic acid sequences (Nuziveedu v. Monsanto 2018). In much the same way as the Brazilian RR soybean patent, the Bt cotton patent finally granted in India was thus substantially modified to focus on the process since most of the product claims were not admissible under the Indian patent legislation. Despite these rather fundamental differences, Monsanto then used these patents to claim the same level of protection as prevailing in the United States. Monsanto was able to do so because, crucially, the legality of these patents had never been tested in the courts. As we will show in the next section, the legal implications of the significant differences in the patents granted in the United States as against those in Brazil and India have only recently started to be questioned.

Monsanto sought to enforce patent rights but proceeded to charge royalties even in cases where it had not yet obtained a patent. In Paraguay, for example,

The negotiation of the private agreement on which the [royalty collection] system is based started before the Paraguayan state authorized the commercial cultivation of RR soybeans and in the absence of a patent on the RR technology in the country. (Filomeno 2014, 110, emphasis added)

The same holds true for Bollgard I Bt cotton in India. In June 2015, thirteen years after the introduction of Bt cotton, the Times of India broke the story that Monsanto had never held a patent on first-generation Bt cotton (Arya and Shrivastav 2015). Surprisingly, no legal action against the corporation on behalf of the affected farmers has followed this revelation.

The model developed by Monsanto in the United States – consisting of strong patent rights, extensive licensing contracts signed by farmers upon the purchase of seeds and an elaborate surveillance system to ensure compliance – was impossible to implement in countries like Brazil and India. In India, for example, Monsanto was faced with millions of farmers on small land holdings, intractable legal enforcement issues and the political impossibility of suing farmers. As Suman Sahai, chairperson of the NGO Gene Campaign, put it bluntly: ‘Suing farmers for patent infringement would be committing suicide. You just don’t sue farmers here in India’.¹³

In these countries Monsanto designed private royalty collection systems tailored to the specific social, political and agricultural landscapes in order to collect the same high rates of royalties as in the United States despite the fact that the patent and plant variety protection laws of these countries are not as stringent. In Brazil, Monsanto put in place a royalty collection system in 2005 that was unique worldwide. As Monsanto’s business manager admitted frankly at the time:

By virtue of the Plant Variety Protection Act, which guarantees to farmers the right to save seeds, I believe we will be operating two systems in Brazil: one in which (royalties) are collected after the harvest, in the case of illegal soy, and the other in which (royalties) are collected when the seeds are sold, in the case of legalized planting. [Kassai 2005, our translation, emphasis added]

This statement is a rare admission on the part of Monsanto that the Brazilian legislation guarantees the right to save seeds for replanting. Yet, at the same time as the Monsanto business manager recognizes this right, he proceeds to explain how the company will flout it.

From Monsanto’s perspective, the problem in Brazil was that farmers could easily save soybeans to replant the following year. Soybeans are not hybrids¹⁴ and they can therefore be saved and replanted without any loss of productivity. Monsanto, therefore, created a system in which all farmers, even those who did not buy certified seeds at the beginning of the season, had to pay royalties when they sold their harvest.¹⁵ If a farmer could not prove that he had purchased certified seeds at the beginning of the season, the grain elevator operator discounted a certain percentage of the commercial value of the shipment and passed this amount on to Monsanto. Monsanto was able to get the grain elevator operators to enforce this policy by offering them as a financial incentive a small share of the royalties collected on its behalf. For first-generation RR soybeans, royalties were at two percent and, when Monsanto introduced second-generation Intacta RR2 Pro soybeans in 2013, it increased the rate of royalties to seven and a half percent. Charging royalties on harvested grain represents a major change for it meant that Monsanto’s IP rights extend to a farmer’s production, and it effectively does away with the right to save seeds.

In India, as in Brazil, Monsanto sublicenses to seed companies the right to introduce its genes into their varieties. Indian seed companies make a lump sum payment to Monsanto for this. In addition, they also pay – and this is more controversial – a percentage of royalties on each packet of seeds they sell. Between 2002 and 2006, when Bollgard I was on the market, royalties represented a staggering 75 percent of the cost of a packet of cottonseeds. It was also stipulated in the sublicensing agreements that seed companies were only allowed to introgress the Bt trait into proprietary hybrid varieties of cotton (Sally and Singh 2019). This was a key component of Monsanto’s strategy: it ensured that farmers would have an incentive to buy new seeds every season. In short, while Brazil and India have provisions in their respective legislations allowing farmers to save seeds for replanting, the royalty collection systems implemented by Monsanto in effect rendered these provisions moot.

It is important to note that for many years after the introduction of the first transgenic varieties in Brazil and India, Monsanto’s patent rights were shrouded in confusion. Few people, apart from some patent officers and government officials, knew which patent covered the technology, and Monsanto did little to clarify the situation (de Souza Junior 2012). The company made vague statements regarding its IP rights, but never disclosed the patent numbers including in its sublicensing agreements. A typical statement read: ‘RR1 Technology is protected by various types of intellectual property rights, including patent and patent applications, trade and commercial secrets, and regulatory information and approvals, as well as continuing improvements, among others’ (FAMATO 2013). Another strategy consisted in filing multiple patent applications in order to shore up its patent protection. The first in-depth legal study of Monsanto’s patent rights in Brazil published in February 2013 concluded that Monsanto had filed 14 patent applications related to RR soybeans and Bt cotton. Crucially, none of these patents were in force at the time the report was published (Barbosa 2013).¹⁶ In other words, with the expiry of the last patent in September 2010, the technology had entered the public domain in Brazil. However, this went by unnoticed, in part due to the confusion created by Monsanto’s multiple lawsuits against the Brazilian Patent Office for denying its requests to extend the term of protection, which enabled the company to continue to charge royalties after that date.¹⁷

When the Times of India broke the story that Monsanto had never held a patent on Bollgard I, this came as a surprise to many, including some of the activists involved in the lawsuits. Contradictory information from different government agencies at various points in time had contributed to the confusion on this matter. Interestingly even the Ministry of Environment had at one point declined to authorize the commercialization of a variety of Bt cotton developed by the public Central Institute of Cotton Research on the grounds that it would infringe on Monsanto’s (non-existent) patent. Monsanto did not apply for a patent for Bollgard I in the early 2000s because the amendments to the Indian Patents Act to make it conform to the TRIPS Agreement had not yet been passed. Although these changes were in the making, the Indian Patent Office would have been unlikely to grant a patent on anything related to a plant at the time.¹⁸

In another expression of IP imperialism, Monsanto argued that the term of protection of its patents in Brazil should be the same as in the United States, where the period had been extended through the continuation-in-part (CIP) mechanism. In US patent law, CIP allows the owner of a patent to claim enhancements to an invention already patented, thus extending the original term of protection. This mechanism is peculiar to the United States and is not recognized in Brazilian patent law. However, when the Brazilian Patent Office denied Monsanto’s requests for extension, Monsanto took the Patent Office to court. The Superior Court of Justice eventually disposed of these cases in favour of the Patent Office in June 2013 (Monsanto v. INPI 2013). However, by applying for the extension of its patents and then filing multiple lawsuits against the Patent Office for denying them, Monsanto gained time and created confusion over whether its varieties were still under patent protection or not. To a certain extent, its strategy succeeded: it collected royalties on RR1 until February 2013, that is, for two years and a half after the expiration of its patent (PI 1100008-2). By then, Monsanto was ready to bring to market Intacta RR2 Pro, its second-generation genetically engineered soybeans.

It was dissatisfaction with Monsanto’s practices and the royalty collection systems that prompted farmers, NGOs and seed companies to initiate legal action.

3. Legal activism around IP and biotech crops: three case studies

3.1. The Roundup Ready soybean class action

I can’t stand it anymore – seeing those Monsanto people showing up

  at the grain elevator and behaving as if they own everything.

   — Grain cooperative manager, Rio Grande do Sul, Brazil¹⁹

On 9 April 2009, a class action was brought against Monsanto by the Brazilian rural union of Passo Fundo, which represents large farmers and farm employers. Passo Fundo is a hub of the soy-growing region of the State of Rio Grande do Sul in Southern Brazil, and the suit was filed in a civil court in Porto Alegre, the State capital. The union asked the court to uphold the right of farmers, as specified in the Brazilian Plant Variety Protection Act, to save seeds from their crops for replanting on their farms and to sell their harvest as food or raw material without paying royalties to Monsanto.

At the core of this lawsuit is the unprecedented royalty collection system for RR soybeans implemented by Monsanto in Brazil starting with the 2003–2004 harvest. In their petition to the court, the rural union argued that the practice of charging royalties on harvested soybeans was illegal under the Brazilian legislation: farmers had the right to save seeds and Monsanto’s IP rights did not extend to a farmer’s production. Shortly afterwards, the State federation of 350 local unions representing family farmers and rural workers (FETAG-RS) voted unanimously to join the action. In the highly polarized Brazilian agrarian landscape, this changed the profile of the case: no longer simply a dispute about profits among powerful economic actors, it came to encompass the rights and livelihood of small farmers, who were thus in an unusual alliance with some of the country’s large producers and landowners.²⁰ There has been a sharp increase in litigation around royalties and patents for RR soybeans in the past decade with multiple class actions and individual lawsuits against Monsanto in Brazil.²¹ However, the Passo Fundo class action stands out as the first to reach the Superior Court of Justice (STJ).

In April 2012, a civil court judge ruled in favour of the farmers’ unions, accepting their argument that Monsanto’s IP rights were exhausted once it licensed its technology to seed producers and, therefore, that it was not entitled to collect royalties upon harvest (Sindicato rural de Passo Fundo v. Monsanto 2012). Monsanto appealed, and in 2014, the Court of Justice of Rio Grande do Sul overturned the first instance decision. In a majority decision, this court decided in favour of Monsanto based on a narrow interpretation of IP law (Monsanto v. Sindicato rural de Passo Fundo 2014). It ruled that as a product of genetic engineering, RR soybeans come under the exclusive protection of the Patent Act, and those who opt to plant them must compensate the patent holder for the use of the technology. Consequently, the Passo Fundo rural union and FETAG-RS lodged a special appeal to the Superior Court of Justice (STJ). Monsanto attempted to restrict the case to the State of Rio Grande do Sul, but the STJ determined that the ruling would apply to the whole of Brazil, making this a multibillion lawsuit involving five million farmers. In October 2019, the STJ unanimously decided in favour of Monsanto, ruling that farmers’ rights to save seeds under the Plant Variety Protection Act are not enforceable against the holder of a patent on transgenic technology (Sindicato rural de Passo Fundo v. Monsanto 2019).

3.2 The Bt cotton trait fee legal dispute

   It is important for all of us to unite to wage a war against Monsanto

— Vice-president of the RSS farmers’ union, quoted in Bhardwaj, Jain, and Lasseter (2017)

India has seen the escalation of a legal dispute since the fall 2015 over the price of seeds and royalties, or trait fees, for Bt cotton. This conflict had been simmering since the mid-2000s in a number of cotton-growing states, notably the southern Indian state of Andhra Pradesh. In 2006, under pressure from farmers’ groups, the Andhra Pradesh government approached the Monopolies and Restrictive Trade Practices Commission (MRTPC) with a complaint against Monsanto. It alleged that Monsanto was engaging in unfair trade practices by charging royalties of up to 75 percent of the cost of a packet of cottonseeds. The Commission ruled in favour of the government and directed it to fix the maximum sale price of a packet of cotton seeds at 750 rupees (down from approximately 1700 rupees) under the Essential Commodities Act. Five Indian states followed the lead of Andhra Pradesh, triggering a string of litigation by Monsanto before various state high courts.

With the election of the right-wing Bharatiya Janata Party (BJP) in 2014, its associate, the ultranationalist Hindu organization (Rashtriya Swayamsevak Sangh, RSS), which is opposed to both GM crops and multinational corporations, has gained leverage with the central government.²² In November 2015, the Ministry of Agriculture asked the Competition Commission of India to investigate whether Monsanto was abusing its dominant position on the market. That same month, the conflict between Monsanto and its Indian sublicensees – the seed companies that produce Bt cotton seeds for the Indian market – escalated when Monsanto declared Nuziveedu Seeds in breach of payment obligations and terminated its sublicensing contract. Nuziveedu, for its part, argued that Monsanto had been illegally charging royalties above the state-stipulated rate. In February 2016, Monsanto filed a lawsuit against Nuziveedu in the Delhi High Court for patent infringement. Nuziveedu, Monsanto claimed, had continued to use the Bt technology after the termination of its sublicensing agreement.

Indian seed companies lobbied the government to intervene and, in December 2015, the government issued the Cotton Seeds Price (Control) Order, or CSP Order (GoI 2015). Drawing on the authority of the government to control the prices of essential commodities in the public interest under the Essential Commodities Act, the CSP Order allowed the Central Government, on the recommendations of a special committee, to fix both the maximum sale price of Bt cotton seeds and the percentage of royalties that could be charged. Monsanto immediately challenged the CSP Order before the Delhi High Court, in particular the provision allowing the government to determine trait fees, on the grounds that it was illegal and unconstitutional (Bera and Sen 2016).

In March 2016, the government, under the CSP Order, fixed the price of cotton seeds at 800 rupees (12 USD). Royalties were fixed at 49 rupees (0.74 USD) for Bollgard II, the result of a 74 percent decrease, and at 0 percent for Bollgard I. Then, in May, the government issued the Draft Licensing Guidelines and Formats for GM Technology Agreements. These guidelines stipulated that a patent holder could not refuse to grant a licence to any eligible seed company. If the patent holder failed to do so, the licensee would automatically obtain a licence under the Fair, Reasonable and Non-Discriminatory (FRAND) terms described in the Guidelines. Compulsory licences are not currently viewed as acceptable by some countries – primarily by the United States – and the draft guidelines caused a stir. Within two days of their publication, and following a direct intervention by the US ambassador (Bhardwaj, Jain, and Lasseter 2017), the Indian government backtracked and announced that the document would be open for public consultations for three months. In August, Monsanto announced it had withdrawn its application in India for the next generation of Bt cotton, a stacked Bt and RR variety called Bollgard II Roundup Ready Flex.

On 11 April 2018, the Delhi High Court issued a landmark decision in the patent infringement case brought by Monsanto against its sublicensee, Nuziveedu (Nuziveedu v. Monsanto 2018). In the first case to examine the legality of patents on biotech seeds in India, the Court ruled that Bt cotton seeds could not be patented under the Indian legislation. Monsanto appealed to the Supreme Court of India, which ruled in January 2019 that the Delhi High Court could not invalidate the patent without conducting a full-fledged trial and sent the case back to the Delhi High Court. No matter how the Delhi High Court rules, the case will likely find its way back to the Supreme Court.

At the time of writing (March 2020), the investigation by the Competition Commission of India is ongoing, but an interim report issued in May 2019 concluded that Monsanto abused its dominant position in India by charging unfair trait fees, and criticized several of its practices, such as insisting on the use of proprietary hybrids, charging different prices in different regions, and not abiding by government-set prices (Sally and Singh 2019). The price of cotton seeds and the percentage of royalties continue to be fixed by the government under the CSP Order, and the Licensing Guidelines are on indefinite hold.

3.3. The Bt brinjal biopiracy case

Oh, you know, law is only an instrument. You know how things work

  in the country, there are so many laws which we don’t apply. It is

   there, yes, but nobody else applied for permission.

 — High-ranking central government official, in response to the Bt brinjal complaint²³

Bt brinjal (eggplant/aubergine) was developed by an international public-private partnership between Monsanto, its Indian partner Mahyco²⁴, a number of government institutions such as the Department of Biotechnology and the National Bureau of Plant Genetic Resources, three public agricultural universities and a private consulting firm. In 2012, the Environment Support Group (ESG), an NGO based in Bangalore in the southern Indian state of Karnataka, filed a public interest lawsuit in the High Court of Karnataka against state and federal agencies responsible for the implementation of India’s biodiversity laws (ESG v. NBA 2012).²⁵ ESG argued that Bt brinjal was a product of biopiracy because its developers did not apply to the National Biodiversity Authority for permission to use local brinjal varieties, as required by the Biological Diversity Act (2002). The objective of the public interest lawsuit was twofold: to raise concerns of biopiracy in the development of Bt brinjal but also, more broadly, to bring attention to the ineffective implementation of India’s biodiversity legislation.²⁶

The public interest lawsuit put pressure on the National Biodiversity Authority, who reluctantly took legal action and filed a criminal prosecution case against the developers of Bt brinjal (NBA v. UAS Dharwad 2012). This created a bizarre situation: the government was initiating criminal proceedings against a project in which some of its own leading bodies had taken an active part. Stated differently, the government was prosecuting some of its own agencies and institutions. This case speaks volume to the problematic ramifications of such global public-private partnerships. Not surprisingly, given the powerful interests involved, the case has been plagued by delays and foot-dragging, contradictory statements on the part of public authorities, and the transfer of key prosecuting officers. In October 2013, the High Court of Karnataka dismissed the petitions seeking to quash the criminal complaint, thus allowing the case to proceed. At the time of writing (March 2020), both the public interest lawsuit and the criminal prosecution are ongoing or, perhaps more accurately, in limbo.

4. Biotech governance and the cunning state

As we have seen, Monsanto manoeuvred skilfully to exploit the grey area resulting from the extension of IP into agriculture in order to implement royalty collection systems based on private sublicensing agreements. We contend that this would not have been possible without the connivance of the state, whose role we analyse using Randeria’s concept of the ‘cunning state’ (Randeria 2003a, 2007). The concept is useful in allowing a delineation of the practices of subordinate states in the global South under conditions that constrain their agency but leave sufficient room for manoeuvre given the political will to do so. By claiming to have no regulatory options, cunning states capitalize on their perceived weakness to render themselves unaccountable to their own citizens (Randeria 2003c). What they lack is not the capacity to enforce norms but the political will to exercise the regulatory options available to them, as we show here. The capacity of subordinate states in the international system to make and enforce rules, as well as to set and achieve policy agendas, is being limited from without and contested from within. While recognizing the severe constraints on the autonomy of subaltern states in the global South subjected to the TRIPS framework, which they had little say in designing, it would be a mistake to accept the self-representation of these states about their own weakness. If welfare states were concerned with the redistribution of risk and resources, cunning states seek to redistribute responsibility. Cunning states manage to have conveniently few duties towards their own vulnerable citizens. Activists in search of responsive government thus face the dilemma of simultaneously working to limit the power of such a state while broadening its social obligations.

Our argument is that states in the global South remain pivotal in selectively transposing international norms to the national terrain, often deliberately obfuscating the legal issues involved, enabling the existence, or continuation, of fuzzy or ‘grey areas’ that allow corporations to exploit these to their benefit, or failing to protect adequately the rights of their own farmers. But this is as much a matter of constrained agency within the asymmetrical architecture of the international system as it is a matter of deliberate policy choices made by the states themselves, who choose to evade responsibility by either pointing the finger to supranational constraints on autonomous regulatory or policy choices, or to lack of capacity to enforce norms depending on the domestic interests at stake (Randeria 2007). We have analyzed elsewhere such strategies of the cunning state in a variety of other contexts in India, including forced displacement and resettlement due to urban infrastructure projects (Randeria 2003c; Randeria and Grunder 2011), biodiversity conservation schemes (Randeria 2003b), the patenting of genetic resources (Caduff and Randeria 2010), the privatization of common property resources (Randeria 2003c) and protection of farmers’ rights (Peschard 2014). Here we use the idea of the cunning state to analyse the agency – albeit constrained – of the state in the implementation of biotech IP regimes. The distinction between the lack of state capacity, which characterizes a weak state, and the absence of political will that is deliberately couched in terms of inability by a cunning state is an important one for actors such as farmers’ movements, food/seed sovereignty activists and NGOs that seek to hold a state accountable.

Such a conceptualization in terms of the practices of the cunning state is crucial in understanding how Monsanto was able to charge royalties for years despite the absence of a patent in India. According to a long-time activist on the issue, in the early 2000s, there would seem to be a tacit agreement between Monsanto and the government that the latter would recognize the corporation’s IP rights over Bollgard I even in the absence of a legal basis for this at the time in India.²⁷ Corporate lobbying must have undoubtedly facilitated such acquiescence on the part of the government, which was also interested in access to technology seen as being in the national economic interest by turning a blind eye to an obvious illegality. Instead of disallowing the collection of royalties the government chose instead to hide behind its international commitment to implement the WTO TRIPS Agreement in order to allow Monsanto to put in place a royalty collection system when, in fact, Monsanto did not even have a patent on Bollgard I in India. More importantly, the government could have used the flexibilities available in the TRIPS Agreement to protect farmers’ rights. The fact that Article 27.3(b) was still under review could have been used to set limits to IP rights on biotech crops in the interest of Indian farmers. India could have also chosen to introduce restrictions on the patentability of micro-organisms in conformity with its own TRIPS-compliant Patents Act; for example, in the form of a provision stating that ‘micro-organisms are only protected in isolation and not where they are inserted into another organism which is itself not patentable under the Patents Act’ (Cullet 2005b, 3609). This interpretation would have been consistent with the exclusion of seeds in Article 3(j) of the Patents Act, and would also have prevented the courts from interpreting a patent owner’s right over a genetic sequence as extending to seeds and plants, as in the case of Schmeiser v. Monsanto. The government could also have established that patent rights and sublicensing agreements could not override farmers’ rights to save seeds under the Protection of Plant Variety and Farmers’ Rights (PPV&FR) Act. In sum, various options were available to regulate IP rights on biotech seeds under the TRIPS regime, but these were not explored, and Monsanto was given a free hand to proceed as it pleased with the argument that the government was constrained by its international obligations with respect to the TRIPS Agreement.

Bt cotton is an interesting case of regulatory capture by corporate interests, namely when a government agency advances the interest of the industry it is charged with regulating instead of the public interest. In India, the use of a No Objection Certificate (NOC) is a clear case of interference by a private corporation in what should be a public process. Indeed, until recently, a seed company had to submit a NOC Certificate issued by Monsanto in order to obtain a plant breeder’s certificate from the relevant public authority.²⁸ As its name implies, the certificate means, literally, that Monsanto did not object to the registration of a plant variety developed by a seed company and containing Monsanto’s Bt gene. This requirement meant that Monsanto had the upper hand in negotiating sublicensing agreements with seed companies, as the latter depended on this certificate to obtain plant breeders’ rights. Cancelling the NOC requirement introduced by the regulatory authority at the behest of Monsanto was thus one of the demands of the seed companies in the dispute over trait fees. Following the election victory of the ultra-nationalist BJP in 2014 and the regulatory re-capture of the state by national seed companies ideologically close to the BJP, this requirement was cancelled in June 2017 (Mukherjee 2017). At no point was the recapture more evident than in October 2016, when the government announced the appointment of the chairman of Nuziveedu Seeds as representative of the seed industry on the PPV&FR Authority²⁹, to replace Mahyco’s chief technology officer (Sally 2016). In any case, the fact that Monsanto was allowed to operate unhindered until 2015 resulted in high trait fees that were passed on to farmers in the form of high seed prices. While the spate of suicides among highly indebted Indian farmers cannot be reduced to a single factor, the high price of Bt cotton seeds combined with poor returns and crop failure, especially in rainfed areas, was certainly a contributing factor to the spiral of indebtedness and despair among rural small farm households (Gutierrez et al. 2015).³⁰

Brazil too, like India, did not take advantage of the flexibilities available in the TRIPS Agreement. Hence, the first patents on biotech seeds were obtained under a controversial pipeline mechanism not required by the TRIPS Agreement (or ‘TRIPS-plus’ provision). Under this transitional provision, companies could apply for patents on products or processes invented before the revised Brazilian Industrial Property Act came into force, provided they had not yet been marketed in Brazil or abroad.³¹ Interestingly, the Public Agricultural Research Corporation (Embrapa) also became a direct beneficiary of the biotech royalty system implemented by Monsanto, thus giving the state little incentive to control or curb the company’s designs in this regard. In the mid-1990s, Embrapa entered into technical cooperation agreements with Monsanto for the introduction of the Roundup Ready trait into Embrapa’s soybean varieties. Embrapa thus had a financial stake in the royalty collection system of which it too was a beneficiary. In response to the Passo Fundo class action challenging the royalty collection system, an Embrapa researcher said: ‘Although Embrapa has other financial sources, if the collection of royalties is interrupted then 5–10 million USD will be cut from our budget, which would stop some research projects’ (Massarini 2012).

Finally, the contrast between India’s position on biopiracy in international negotiations and its role in the development of Bt brinjal – itself embroiled in accusations of biopiracy – is another telling illustration of the ability of cunning states to pander to divergent constituencies (see Peschard 2014, 1100–1101). The fact that Bt brinjal was developed through a public-private partnership reveals how these arrangements blur the line between public research and commercial exploitation, and between public and private interests. Statements made by the public agricultural universities in the court proceedings reflect a tacit understanding that they are exempt from the requirements of the Biodiversity Act because they are public institutions. How problematic such an assertion is becomes evident when public institutions enter into partnerships with private corporations. It is an open secret that public institutions have received lavish funding as a result of their participation in this project.³² Since their participation consists in providing access to local eggplant varieties, this raises uncomfortable questions about the ways in which public-private partnerships can become conduits for the privatization of resources held in the public domain.

The state is not a unitary entity, and government bodies have been rife with internal tensions over the governance of agricultural biotechnology. While Monsanto had a cozy relationship with the centre-left Congress-led UPA government, the national moratorium on Bt brinjal was also introduced by the then Minister of Environment, Jairam Ramesh, acting under considerable pressure from NGOs and some sections of the farmers’ movement representing small farmers. Internal tensions on the issue have continue to plague the BJP-led NDA government. The Prime Minister’s Office, for example, has been at odds with the Minister of Agriculture on the role that multinational corporations should play in the newly liberalized Indian economy (Bhardwaj, Jain, and Lasseter 2017). Prime Minister Modi, in spite of his high-pitch nationalist rhetoric, has eased restrictions on foreign direct investment and openly supported multinational corporations entering and operating in India. Reiterating its public commitment to respecting international IP standards, his government has been reluctant to issue compulsory licenses for drugs (Damodaran 2016). It has also come out in support of GM crops, echoing the biotech industry’s argument that these crops will bring about a much-needed increase in food production (Sehgal 2015).³³ On the Bt cotton issue, however, the RSS’s ultranationalist views against the entry of foreign corporations into the country seem to have prevailed so far (Kang 2016; Andersen and Damle 2019). According to an activist, this very public round of regulation of royalties is a ‘win-win’ for the BJP-NDA government. For in the context of the ongoing agrarian crisis, and amidst all the other pro-corporate policies it has been promoting, it nevertheless can give the impression that the government is not beholden to large corporations.³⁴

At the time when biotech crops were commercially introduced, neither the Brazilian nor the Indian state availed itself of the options available to them to regulate IP on biotech seeds. Both cunning states were complicit in giving corporations a free hand to implement private royalty collection systems that maximized their profits at the expense of farmers. In the following years, a number of legal cases brought by farmers’ movements and NGOs challenged several aspects of Monsanto’s IP rights and practices. These legal challenges have led to unexpected alliances and raised strategic dilemmas for food sovereignty activists.

5. Unexpected alliances and strategic dilemmas

As [Monsanto] is amoral, it will do anything for profits. It does not

 respect anything. It ends up committing the worst crimes against

nature and against people. Whoever gets in its way gets eliminated.

   — Soy grower and litigant, Passo Fundo, Brazil³⁵

One might expect to hear this statement from a member of one of Brazil’s left-wing agrarian movements. These words, however, were spoken by a politically conservative large landowner and illustrate our contention that legal disputes around IP and biotech crops have brought about unlikely coalitions that have temporarily united strange bedfellows in unconventional alliances.

Indeed, those challenging the legitimacy of IP rights on biotech seeds are not those who are involved in litigation focussing on regulatory aspects of GM crops and their health and environmental impacts. The RR soybean class action in Brazil originated with a large farmer, who was deeply dissatisfied with the royalty collection system his lawyer after failing to obtain the backing of his own federation. According to him, his federation had been coopted, so he filed a class action lawsuit through his local rural union. The state federation of family farmers (FETAG-RS) joined the class action shortly afterwards. The lawsuit thus represents a rare example of an alliance between large rural producers and family farmers. In the case of Bt cotton in Andhra Pradesh, southern India left-leaning farmers’ organizations affiliated to the Communist Party of India (CPI) filed the initial complaint against Monsanto in 2005.³⁶ In the more recent phase of the dispute before the Delhi High Court (2015 onwards), national corporations (Indian seed companies that are in fact sub-licensees of Monsanto) have replaced farmers’ organizations as the main protagonists. Finally, in the case of Bt brinjal, the case has been spearheaded single-handedly by a small Indian NGO that uses strategic litigation to advance environmental causes, while surprisingly the much larger GM-Free India coalition has failed to actively support the case.

In India, the ideology of food sovereignty activists, rooted in transnational solidarity among peasant organizations, is at odds with the ultranationalist ideology of right-wing Hindu organizations, and yet the two converge in their critique of GM crops. Food/seed sovereignty activists oppose GM crops as detrimental to the environment and to biodiversity. They consider GM crops as promoting not only corporate concentration at the expense of small farmers but also dispossessing farmers of their seeds. Hindu nationalists, for their part, oppose these technologies owned by multinational corporations as not being ‘swadeshi’ (literally ‘of one’s own country’, i.e. of Indian origin). But they too have integrated the idiom of ‘seed sovereignty’ used by food sovereignty activists into their own discourse. In the words of a leader of the RSS farmers’ organization (BKS), ‘Monsanto should go back, as it is important for seed sovereignty. We can produce our own seeds like we did in the past’ (Agha 2018, see also Bhardwaj, Jain, and Lasseter 2017). The slogan ‘Monsanto Go Back’ resonates with anti-colonial slogans popular during the nationalist movement against British rule, though ironically the RSS was not part of this struggle led by Gandhi and the Congress Party. Some RSS critiques of GM crops are couched in an ultranationalist and essentialist discourse about ‘natural food’ and the inherent value of ‘Desi’ plant varieties (the term ‘desi’ refers, in this context, to plant varieties that are thought to be native to the Indian subcontinent). The line between discourses of seed sovereignty and ultranationalist discourses can often become blurred: environmental activist Vandana Shiva, for example, uses nationalist and essentialist tropes when she writes about the ‘clash of civilization’ between India and the West, and about ‘India’s ancient love for nature’ (Shiva 2016a). Despite their political differences, left-wing and right-wing activists share a common concern about corporate concentration of power and the erosion of agrobiodiversity. These ironies are not lost on the activists themselves. A leader of the RSS economic wing observed with an amused smile that he had found himself speaking at a press conference on GM mustard organized by civil society organisations with a number of nationally and internationally renowned food sovereignty activists, who otherwise would not have shared a platform with him.³⁷ Activists are wary of the effects of such a fuzzy politics, which defies older ideological divides. For those in search of principled politics based on ideological affinities, these ambiguous alliances may represent dangerous liaisons.

Many GM critics and food sovereignty activists express a healthy skepticism regarding IP rights and have only reluctantly supported these disputes. This is partly because proprietary issues surrounding transgenic crops are often deemed less urgent than preventing their environmental release. But some activists are also concerned that engaging on IP-related issues might ultimately contribute to legitimizing existing legal regimes for plant varieties. For example, when the Indian government announced in 2016 that it would hold public consultations on the licensing guidelines, GM critics were faced with a dilemma: should they participate in the consultations in order to influence the outcome and arrive at a royalty collection system that would be fairer for farmers? Or should they boycott the consultations because taking part would risk cooptation and amount to legitimizing the royalty collection system?³⁸ Activists see government regulation as a double-edge sword: while they are sympathetic to efforts to curb corporate practices considered rapacious and unfair, they are also wary that capping Bt cotton seed prices and royalties could make Bt cotton cultivation more attractive to farmers. They are also cautious about lending support to legal disputes driven in large measure by the short-term commercial interests of other actors in the agbiotech economy, such as large soybean growers and seed companies. GMO critic and seed sovereignty activist Vandana Shiva has been an outspoken critic of patents on seeds generally, and of Monsanto’s IP practices in India, in particular. In the recent battle over Bt cotton seed prices and royalties, she fully supported the government’s Licensing Guidelines as being in the interest of the country’s farmers (Shiva 2016b). Other seed sovereignty activists, however, offered qualified support for the Guidelines as in their view it is seed companies, be they Indian in this case, and not farmers, who stand to gain the most from this regulatory framework. Since farmers had already benefitted from price controls under the CSP Order, the regulation of trait fees under the Guidelines guaranteed the seed companies’ profit margins without directly benefitting farmers. Here once again was the cunning state at work in furthering the interests of one constituency, namely (Indian) seed companies, under the guise of protecting farmers’ interests.

On a strategic level, activists perceive the protracted nature of legal battles as an important drawback for vulnerable communities. Temporality plays out differently depending on the nature of the issue. As Randeria and Grunder (2011) have argued in their study of evictions in urban India, litigation can be used strategically by poor city dwellers to ‘stretch time’ and delay forced displacement. However, in the case of seeds, prolonged court cases mean that transgenic varieties have the opportunity to spread, legally or illegally. As living entities that reproduce, seeds have the ability to evade formal legal processes. In Brazil, widespread cultivation of RR soybeans introduced illegally from Argentina put pressure on the government to lift the judicial moratorium and authorize their cultivation. Some activists contend that they cannot afford longwinded legal processes with an uncertain outcome that need considerable, scarce resources. Besides, time is on Monsanto’s side here for until a dispute is settled the powerful corporation can continue to charge royalties, so delays in court are to its benefit in these cases. After decades of litigation some activists hold the conviction, born out of the arduous and ultimately failed efforts to secure farmers’ rights through international negotiations and agreements, that the only effective way to protect farmers’ varieties is to work at the grassroots level to keep seeds in farmers’ hands instead of relying on courts to protect their rights (Peschard and Randeria 2020).

Asked in May 2016 whether she believed Monsanto’s patents were in conformity with the Indian legislation, a prominent Indian activist responded, ‘To be honest, no one really knows. The problem is that these patents have never been tested in the courts.’ ‘But’, she lamented, ‘who among us [activists] can afford to take on such a legal challenge?’³⁹ At the time, no one could have imagined that the dispute around Bt cotton would escalate and result in a court decision on the legality of the Bt cotton patent a mere two years later (Nuziveedu v. Monsanto 2018). Ironically, the challenge did not come from farmers and civil society, but from seed companies that had benefited handsomely from Monsanto’s royalty collection system. The fact that economically powerful and politically influential actors – large Brazilian soybean farmers, Indian seed companies and the right-wing ultranationalist RSS – have joined these legal disputes undoubtedly gave them momentum. In India, the shift in power was captured well in the title of the following newspaper article: ‘Seed giant Monsanto meets its match as Hindu nationalists assert power in Modi’s India’ (Bhardwaj, Jain, and Lasseter 2017).

The motivations of litigants in these lawsuits are diverse: a concern for farmers’ rights to save seeds, the need to protect seed and food sovereignty, a deep sense of dissatisfaction with Monsanto’s practices, strong nationalist sentiments, competing economic interests and the biopiracy of farmers’ plant varieties and traditional knowledge. Litigants did not necessarily seek to challenge the proprietary food regime. And yet, as we will see in the next section, the processes they set in motion eventually went beyond what was initially envisioned by some of the parties to the disputes.

6. Gauging the impacts

In assessing notions of success and failure in litigation, it is essential to consider that, with the exception of the Indian seed companies in the Bt cotton case, which as commercial actors have more resources than civil society actors, the two sides have vastly unequal means and resources. Monsanto employs an enormous professional legal team and sets aside vast sums of money to cover potential litigation costs. Farmers’ unions and activists, in contrast, have extremely limited financial resources and rely for the most part on pro bono lawyers. They also face another hurdle, more subtle and yet pervasive, which stems from Monsanto’s formidable lobbying power to shape policy to its own benefit.

For a decade after the commercial introduction of GM crops, confusion reigned about IP rights over biotech seeds in Brazil and India. The new sui generis legislation passed in Brazil and India following the TRIPS Agreement raised complex legal questions that were left unresolved, primarily regarding the conflict between a country’s patent law and its plant variety protection law when it comes to biotech seeds. Indeed, the exclusive rights granted to a patent owner under patent law collided with the right to save seeds guaranteed under the plant variety protection legislation. Since IP rights in agriculture had only recently been introduced, expertise in this area was sorely lacking. Monsanto’s deliberate lack of transparency and intentional obfuscation regarding its patents added to the confusion.

In this context, litigation played an important role in clarifying the patent situation. Legal actions have been instrumental in making public important documents related to IP rights over biotech seeds that were not in the public domain, such as material transfer and sublicensing agreements. Some of these documents were obtained through Right to Information requests, while others were submitted as part of court proceedings. The documents made available in courts had several short-term concrete effects. The collection of royalties on RR1 was terminated in Brazil following the revelation that it was no longer under patent. In India, the patent application for Bt brinjal was suspended pending the resolution of litigation. Moreover, farmers’ communities only found out that local brinjal varieties had been used in the development of Bt brinjal because of the public interest lawsuit; in one case, this prompted the community to register the local variety as a geographical indication (GI) (Bhat and Madhyastha 2007). Finally, legal activism around Bt cotton has brought about a dramatic reduction in seed prices (around 50 percent) through government regulation in India.⁴⁰

Litigation also spurred the development of expertise on IP and agriculture among farmers’ representatives, lawyers, public servants, and judges.⁴¹ Academics and legal experts started researching and publishing on these issues, with some law firms specializing in biotech patents and licensing.⁴² In the case of Bt brinjal, the public interest lawsuit raised awareness of the Biodiversity Act among companies, public officials and judges who were not yet familiar with India’s biodiversity regime. As the government official quoted earlier reveals, no individuals or companies were applying for permission to access biological resources at the time the issue was first raised in 2010. In this context, the public interest lawsuit showed that violations of the Act could lead to prosecution, and this prompted the National Biodiversity Authority to issue key guidelines and application procedures that were not yet in place.

More fundamentally, litigation has compelled the courts to address the legal issues arising from the new national legislation for plant varieties introduced in the wake of the TRIPS Agreement. In Brazil and India, as in Canada and the United States, decisions in favour of Monsanto have been narrowly grounded in property rights law. This is the case, for example, of the second-instance ruling in the RR soybean class action. In their majority opinion, the judges ruled that, as a product of genetic engineering, RR soybean comes under the exclusive protection of the Patent Act, and that those who opt for RR soybean must compensate the patent holder for the use of the technology. These decisions usually do not acknowledge the specificities of national legislations and rely on patent infringement rulings in Canada and the United States.

In contrast, in Brazil and India, litigants opposing Monsanto have had several important legal victories, notably the first instance ruling in the RR soybean class action lawsuit, and the Delhi High Court ruling in the Bt cotton patent infringement lawsuit. Through these decisions as well as dissenting opinions, a body of case law has developed that provides alternative legal interpretations as against those grounded in a strict interpretation of patent law. These decisions are usually informed by broader concerns over food security and over the limits and social function of property rights. In the second instance ruling in favour of Monsanto in the RR soybean class action lawsuit, the dissenting judge redefined the conflict as one between a third party’s intellectual property and the guarantees offered to small farmers in the Brazilian Constitution. In his view, Monsanto holds property rights over the initial technology, but these do not extend to the entire production process and to successive generations of plants. When there is a normative conflict, he argued, the larger social interest must prevail over purely private interest. Given the importance of family agriculture for Brazilian food security, he concluded, it was in the interest of society to guarantee the right to plant freely. The Delhi High Court ruling invalidating Monsanto’s patent on Bt cotton in India similarly emphasized the exclusions to patentability under the Indian Patents Act, farmers’ rights under the PPV&FR Act, and the public interest.

7. Conclusion

In Brazil and India, Monsanto operated on the principle that it should enjoy the same IP rights that it did at home in the United States, despite significant differences in legislation in the areas of plant variety protection, patents and farmers’ rights between these countries. These legislative differences meant that patent claims had to be significantly modified to meet the requirements of the Brazilian and Indian legislation with respect to exemptions to patentability. However, the resulting patents were then used to claim the same level of protection as in the United States. Monsanto also manoeuvred skilfully to implement royalty collection systems based on private sublicensing agreements. In the process, it got away with many questionable practices, such as collecting royalties in the absence of a patent (India) or after its expiration (Brazil). This was made easier by the hype surrounding GM crops in the early years and by the lack of legal expertise in countries where IP in agriculture had only recently been introduced.

As the No Objection Certificate in India and the collection of royalties on harvested grain in Brazil amply demonstrate, the implementation of these private IP regimes would not have been possible, however, without the successful cooptation of private actors and public authorities. We can only concur with Filomeno’s assessment for South America that ‘the implementation of Monsanto’s system of royalty collection relied on coercion and cooptation of some associations of rural producers, local seed companies and national governments, bringing its legitimacy into question’ (2014, 13–14). While the Brazilian and Indian states have not actively supported the introduction of proprietary rights regime like their United States and Canadian counterparts (Pechlaner 2012, 239), they have certainly been complicit in their implementation. As Pray and Nagarajan observe in the Bt cotton case, the ‘Indian regulatory system gave [Mahyco Monsanto Biotech⁴³] a temporary monopoly on the Bt gene’ (2010, 300). The Bt case study adds another layer of complexity to the analysis of the role of the cunning state in the implementation of neoliberal designs and international norms. Indeed, it sheds light on how India’s right-wing government, in spite of its strident nationalist rhetoric, is forced to juggle its stated aim of attracting foreign investment with the demands of its protectionist rural electoral base.

Besides the strategies of cunning states like India and Brazil delineated above, such heterogeneity and internal contradictions within state policies, or pulls in different directions between various organs of the state, also make it difficult to hold these states accountable through collective action, be it by way of legal challenges, or political mobilization, or the use of both simultaneously as is often the case. Moreover, most activists are ambivalent about the state that they oppose and yet must depend on. The dilemma they face is that the state, which is an adversary when in alliance with foreign or domestic corporations, is at the same time needed as an ally to regulate those very corporations. Instead of an earlier principled anti-statism many activists have been forced to recognize the need for pragmatic partnerships with the state even while challenging its legitimacy to represent the public interest and the common good. Thus activists, who contest the sovereignty of the state in international human rights or indigenous rights forums and question its claim to hold a monopoly on the definition of the common good, for instance, often also call for a strong state as a bulwark against the forces of globalization to protect farmers’ interests against powerful corporations like Monsanto. If our case studies illustrate the emancipatory potential of law, they also point to the complexities of the strategic opportunities and limitations of using law in struggles against commodification of the commons and dispossession of farmers.

Our empirical material reminds us that all rhetoric of globalization to the contrary, a lot of the resistance that we chronicle here primarily addresses the state and thus continues to be in the national arena using both domestic law and courts even as the struggles for food and seed sovereignty move in and out of the national arena, or take place at several scales at once. In a landscape of legal plurality, scattered and unbundled sovereignties as well as deliberate practices of opacity and shifting of responsibility, the nature and location of power has become diffuse making it difficult for activists to call a cunning state to account. Scholarly and media attention to spectacular protests have contributed to the relative neglect of the mundane world of the national legal arena, which we highlight here and where civic alliances continually challenge state (in)action. Litigation has played a key role in questioning corporate practices, forcing the state to act and prompting courts to examine biotech patents and royalties. Regardless of their outcome, these lawsuits have already changed the public debate and shaped legal, political as well as corporate responses. They have brought important information into the public domain, helped clarify the applicability and ambit of patents, contributed to building expertise in the area of IP and agriculture, and challenged some of the existing patents and practices. Consequently, litigants and judges have begun to develop alternative interpretations of the balance between private IP rights and collective rights such as food security and farmers’ rights to seeds.

This comparison of the nature and workings of legal activism around IP and biotech crops in Brazil and India thus draws attention to several important issues. Due to commercial interests surrounding royalties, these legal disputes have drawn together a more diverse range of actors than other legal disputes around GMOs’ regulatory, health or environmental impacts. This is both a strength and a weakness. On the one hand, seed companies and large farmers have the financial resources and political muscle to undertake expensive and protracted legal action. On the other hand, the diverse nature of the litigants necessarily informs their different legal arguments and shapes their varied strategies. For instance, seed companies may more easily agree to settle out of court rather than mount an upfront challenge to a system from which they benefit. For their part food and seed sovereignty activists have been understandably wary of supporting IP lawsuits for both ideological and strategic reasons. For those activists, who advocate a more radical political project, these lawsuits, and the legal changes they may at best bring about, do not go far enough. This skepticism can be attributed in part to the political ideology of the litigants, and in part to the constraints of the judicial process, which must build on established legal concepts and principles, such as national sovereignty and essential commodities. While the lawsuits we have considered here have expanded the frame of analysis beyond property rights to encompass farmers’ rights, the public interest and the public good, they stop short of embracing alternative paradigms such as seed commons. The reluctance of many food and seed sovereignty activists to be involved in lawsuits also stems from their awareness of the dangers of cooptation, and their fundamental skepticism vis-à-vis the prospects of transforming IP regimes in agriculture through litigation.

And yet, despite these constraints and limitations, these lawsuits have helped to achieve what many seed sovereignty activists have long wanted. Not only have they exposed Monsanto’s abusive IP policies and practices and its blatant disregard for national laws, but they have also compelled national courts to examine the legality of biotech patents and royalty collection systems under their respective national legislation. These legal challenges can be thus said in a sense to represent a counter-movement to US legal hegemony, or what the well-known Italian international public lawyer, Ugo Mattei, calls ‘imperial law’ (2003).

As actors other than agbiotech corporations – farmers’ unions, lawyers, civil society activists – become legally adept in the area of IP and agriculture, the number of questionable practices that agbiotech corporations can get away with is decreasing. It is too early to gauge the long-term implications of these developments on the evolution of proprietary regimes in agriculture, but the shrinking of the grey area in these matters is a good measure of the by no means insignificant impact that legal activism around IP and biotech seeds has had in the global South so far. A number of initial rulings in favour of farmers over biotech corporations hint that these lawsuits could eventually disrupt the legal status quo and inflect the evolution of proprietary legal regimes in agriculture. If these cases are any indication, different IP cultures, stronger farmers’ rights legislation and the continued importance of seed-saving practices mean that legal challenges to proprietary rights to seeds could very well have a different outcome in the global South.

The rapidly evolving IP landscape in agriculture will inflect future conflicts around IP and seeds. As the first generation of major agbiotech patents enter the public domain – starting with Monsanto’s Roundup Ready glyphosate herbicide tolerance trait in 2015 – the industry is actively devising new marketing strategies. These include the use of regulatory data and approvals to retain control over its products in what has been labelled ‘IP-regulatory complexes’ (Jefferson et al. 2015; Marden, Nelson Godfrey, and Manion 2016). At the same time, the biotech industry is pushing for the new genome editing technologies⁴⁴ to be exempted from GMO regulations because they do not involve transgenesis.⁴⁵ A further development of relevance here is how the dematerialization of plant genetic resources – the digitalization of genetic sequences and their storage in electronic databases – threatens to bypass the international instruments in matter of equitable access to genetic resources and benefit sharing, opening the door to biopiracy on a new scale. Given the rapid pace at which biotechnology and IP regimes are co-evolving, the challenge for farmer and peasant organisations, agrarian activists and their allies will be to stay ahead of the game.

Update on the lawsuits

As of March 2020, all three lawsuits have reached their countries’ highest courts. In the class action, the farmers’ unions filed an extraordinary appeal to the Federal Supreme Court (STF) in March 2020. The Supreme Court of India has sent the Bt cotton lawsuit back to the Delhi High Court for reconsideration. Given the stakes, no matter who wins, the case will likely find its way back to the Supreme Court. In the Bt brinjal case, both the public interest litigation and criminal prosecution are before the Indian Supreme Court but have been in limbo. How these courts will rule remains to be seen. The stakes are high, and so is the pressure.

Acknowledgements

Our thanks to participants in the international seminar ‘Seed activism: global perspectives’, held at the Graduate Institute of International and Development Studies (IHEID) in May 2018, for a stimulating discussion around these issues and for their feedback on a preliminary version of this paper. We would also like to thank the two reviewers for providing extremely useful comments, feedback and concrete suggestions to sharpen and clarify our arguments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Karine Peschard is a Postdoctoral Fellow at the Albert Hirschman Centre on Democracy, Graduate Institute of International and Development Studies (Geneva), on a Swiss National Science Foundation-funded project entitled Bringing the seed wars to the courtroom: legal activism and the governance of plant genetic resources in Brazil and India. Trained as an anthropologist, her research interests centre on intellectual property rights, agrobiodiversity, legal activism, peasant rights, and food and seed sovereignty, with a focus on Brazil and India. She is preparing a book entitled ‘Seed Activism: Challenging Monsanto in the Courts in Brazil and India.’

Shalini Randeria is Rector of the Institute for Human Sciences (IWM) in Vienna and Professor of Social Anthropology and Sociology at the Graduate Institute of International and Development Studies (IHEID) in Geneva, where she is also Director of the Albert Hirschman Centre on Democracy. She has published widely on the anthropology of globalization, law and policy, the state and social movements. Her empirical research on India addresses issues of post-coloniality and multiple modernities.

Additional information

Funding

Research for this article was supported by the Swiss National Science Foundation (SNF) [grant number 100017_162398/1] (2015–2019). We acknowledge the financial support of the Albert Hirschman Centre on Democracy for the publication of this article in Open Access.

Notes

1 In 2018, Bayer acquired Monsanto for 66 billion USD and thus became the largest agrochemical company worldwide.

2 ‘As early as 2003, Monsanto had a department of 75 employees with a budget of $10 million dedicated to the sole purpose of pursuing farmers for patent infringement’ (GRAIN and LVC 2015, 28).

3 See Dewayne Johnson v. Monsanto; Hardeman v. Monsanto; Pilliod v. Monsanto.

4 Out of 147 patent violation suits it filed against US farmers since 1997, Monsanto won all nine cases that went to trial (Schapiro 2018, 14). In the remaining cases it reached confidential out-of-court settlements.

5 The case went all the way to the Supreme Court of Canada, which ruled in 2004 in a close five-to-four decision that irrespective of how Roundup Ready canola landed up in Schmeiser’s fields – whether through genetic contamination or otherwise – Monsanto had a valid patent and, therefore, owned the genes of crops on Schmeiser’s property even if he had not bought Monsanto seeds. The judgment came in for widespread criticism internationally including for relieving companies of any responsibility or liability for genetic contamination (Cullet 2005a).

6 See the introduction to this Special Forum for a broader discussion of the full range of contemporary mobilizations in defence of seeds and agrobiodiversity.

7 See Abdelgawad (2012) for an overview of the Bt brinjal biopiracy case; and Lapegna and Perelmuter (2020) for an analysis of legal activism around IP and RR soybean in Argentina. On IP and Bt cotton in India, see Manjunatha (2015) and Van Dycke and Van Overwalle (2017).

8 The Superior Court of Justice (Superior Tribunal de Justiça, STJ) is the country’s highest court for non-constitutional matters.

9 Roundup Ready soybeans are genetically engineered to withstand the direct application of Monsanto’s wide-spectrum Roundup herbicide; while Bt cotton and Bt brinjal are genetically engineered to produce a Bt protein that is toxic to certain pests. These two biotech traits – herbicide tolerance and insect resistance – account for the vast majority of biotech crops worldwide.

10 Patents and plant breeders’ rights (PBRs) differ in their subject matter, scope and eligibility requirements. PBRs protect a protected variety’s propagating material (versus a process or product in the case of a patent); there are exceptions to the exclusive rights granted to the plant breeder for research and seed saving; and the eligibility requirements are not a stringent (for ex. there is no utility/industrial application nor inventive step/non-obviousness requirement).

11 The Indian Patents Act is more specific and excludes ‘seeds, varieties and species, and essentially biological processes for production or propagation of plants and animals’ (Chapter 3.2).

12 Note that the United States is among the few exceptions worldwide in this regard (the others being Japan, South Korea, and Australia). It grants utility patents on sexually reproducing (seed propagated) plants and genetically engineered plants. The United States also provides ‘plant patents’ for asexually reproducing plants (that reproduce, for example, via tubers).

13 Interview with Suman Sahai, chairperson, Gene Campaign, Delhi, India, 3 May 2016. In 2019, Pepsico filed an IP infringement lawsuit against Indian potato growers in what is, to our knowledge, the first ever such lawsuit in India (this lawsuit concerned a plant breeders’ certificate, not a patent). The lawsuit was rapidly withdrawn following a spirited defence by the farmers of their rights, a public outcry and presumably political pressure from the ruling BJP (Down to Earth 2019).

14 Hybrids are obtained through a breeding technique called heterosis. The yield of hybrids declines after the first generation, thus creating an incentive for farmers to buy seeds every year. Not all crops lend themselves to hybridization.

15 Monsanto refers to royalties collected on grain – as opposed to seeds – as an indemnity for the unauthorized use of a patented technology (ClicRBS 2005).

16 In some cases, Monsanto itself had withdrawn the patent application. In other cases, the INPI had either dismissed or archived the patent application. In yet other cases, the patent had been granted but the period of protection had already expired. The last of the patents in force, PI 1100008-2, expired on August 31, 2010 (Barbosa 2013).

17 In a number of individual and class actions in Brazil, lower court judges have granted the judicial deposit of royalties. However, higher courts generally overturn these decisions before they become effective. This means that farmers have to continue paying royalties to Monsanto until the final ruling.

18 Interview with an IP lawyer, Delhi, India, 14 March 2018.

19 Comment reported by a member of congress during a session of the special commission examining a bill to amend the Plant Variety Protection Act. Brasília, Brazil, 5 December 2018.

20 It must be noted that the three large farmers’ unions that are litigants in the class action are ‘dissident chapters’ and that they did not enlist the support of their federation leadership for the class action, thus reflecting a fissure among large farmers.

21 Interview with Néri Perin, lawyer for the farmers’ union, Brasília, Brazil, 20 November 2017.

22 The RSS (Rashtriya Swayamsevak Sangh) is an ultra-right-wing Hindu organization, whose political arm is the ruling BJP. Several RSS organisations including the farmers’ wing, the Indian Farmers’ Association (Bharatiya Kisan Sangh, BKS), which claims two million members and is committed to traditional agricultural knowledge and practices as well as its economic wing, the Swadeshi Jagran Manch (SJM) that advocates self-reliance and is critical of foreign direct investment (FDI), are opposed to GMOs and multinational corporations on nationalist grounds. The BKS, in particular, is outspoken in its criticism of Monsanto. These RSS organisations are at odds with the economic strategy of the BJP government that is making all-out efforts to attract foreign direct investment in many sectors hitherto closed to FDI; its electoral slogan in the 2014 elections was ‘Make in India’. The RSS’s cultural wing, the World Hindu Council (Vishva Hindu Parishad, VHP) which works primarily among the Indian diaspora in the UK and in the US, however, represents an exception: it is pro-GMOs and denounces GMO critics as being ‘anti-science’ (Chowgule 2015).

23 As reported by Leo Saldanha, Coordinator, Environment Support Group, Interview, Bangalore, India, 31 March 2016.

24 The Maharashtra Hybrid Seeds Company Limited (Mahyco) was founded in 1964 and is one of India’s largest seed companies. It is Monsanto’s partner in India, with Monsanto holding 26 percent of its equity. Monsanto and Mahyco also have a joint venture called Mahyco Monsanto Biotech (MMB) for the commercialization of Bt cotton in India (Scoones 2006).

25 The respondents are the National Biodiversity Authority, the Ministry of Environment and Forests, the Karnataka Biodiversity Board, the State of Karnataka, and the Union of India.

26 This public interest lawsuit should be distinguished from another public interest lawsuit brought to the Supreme Court of India in 2005 by an Indian citizen, Aruna Rodrigues, which challenges the release of genetically engineered organisms by the government in the absence of a proper biosafety protocol. It is also important to note that, as a result of a moratorium introduced in 2010 following a nationwide public consultation exercise, Bt brinjal has not yet been commercially introduced in India.

27 Interview with a food sovereignty activist, Delhi, India, 16 March 2018. Interestingly, both the right-wing BJP (1998–2004) and centre-left Congress Party (2004–2014) were in government one after the other during the period in which Bollgard I Bt cotton was cultivated (2002–2006).

28 A plant breeders’ certificate is the document that recognizes and protects the rights of the breeder of a plant variety that is new, distinct, stable and uniform.

29 The PPV&FR Authority is the government body responsible for the implementation of India’s Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act.

30 For a discussion of the highly-debated relationship between Bt cotton and farmers’ suicides in India, see Thomas and De Tavernier (2017), Gutierrez (2018) and Flachs (2019).

31 The constitutionality of the pipeline provisions in the Brazilian Patent Act are being challenged before the Federal Supreme Court.

32 Interview with a criminal lawyer, Bangalore, India, 7 June 2016.

33 The impact of biotech crops on agricultural productivity is highly debated and the evidence is mixed. See, for example, IAASTD (2009, 8).

34 Interview with a food sovereignty activist, Delhi, India, 16 March 2018.

35 Interview with Luiz Fernando Benincá, 25 January 2017.

36 Farmers were represented by a lawyer from the seed company Nuziveedu, which is revealing of the fact that corporate interests were involved early on (Interview with a food sovereignty activist, Delhi, India, 16 March 2018).

37 Interview with an RSS activist, Delhi, India, 14 March 2018.

38 Interview with a food sovereignty activist, Delhi, India, 16 March 2016.

39 Interview with Suman Sahai, chairperson, Gene Campaign, Delhi, India, 3 May 2016.

40 From 1600–1800 INR (33-37 USD) when Bollgard I was introduced in 2002, to 740 INR (10.73 USD) in 2018 (Bollgard II). The reduction in trait fees has been even more dramatic: from 1250 INR (25.71 USD) to 39 INR (0.57 USD) (Fernandes 2018).

41 There is a large body of literature on the development of lay expertise on the scientific and regulatory dimensions of GMOs (See, for ex., Kinchy 2012; Heller 2002; Purdue 1996). Expanding this literature to include lay expertise on GMO-related IP issues would represent an important avenue for research.

42 One example is the Brazilian law firm Denis Borges Barbosa Advogados, which specializes in IP and biotechnology and produced the first comprehensive report on Monsanto’s IP rights. See Barbosa (2013).

43 Monsanto’s joint venture in India. See footnote 24.

44 The most well-known of these new genomic technologies is CRISPR (‘Clustered Regularly Interspaced Short Palindromic Repeats’).

45 However, as Montenegro de Wit observes, ‘most labs currently use older GM techniques, based on Agrobacterium, to shuttle the genes for CRISPR and Cas into the plant cell … that process means the plant is transgenic’ (2020, 19).