The issue between Monsanto and Nuziveedu Seeds has been stemming frequently on account of relevant question on the patentability of BT Cottons seeds of US giant Monsanto (Plaintiffs) in India. The Plaintiff had entered into a sub license agreement with Hyderabad- based Nuziveedu Seeds(Defendants) whereby the defendants  were entitled to develop “Genetically Modified Hybrid Cotton Planting Seeds” with help of the plaintiffs’ technology and to commercially exploit the same subject to the limitations prescribed in the agreement. Furthermore the agreement also provided for payment of licence fee/trait value by the defendants, for use of the plaintiffs’ patented technology. However on account of certain issues relating to payments of license fees in lieu of the change in price control regime introduced by the government, a suit for injunction was filed by the plaintiff, to which the defendants argued that their rights were protected under the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (hereinafter referred to as ‘the PPVFR Act’)

The Supreme Court bench of Justice Rohinton Nariman and Justice Navin Sinha set aside the decision passed by the Division bench of the Delhi High Court which held that the patent of Monsanto Technologies in respect of its BT cotton seeds was inapplicable in India. The Bench further restored the order of the Single Judge of the Delhi High Court dated 28th March 2018 which had granted interim injunction against the Defendants Seeds from selling BT cotton seeds using Monsanto’s trademark. The Bench observed that the suit in particular involved a varied and complicated questions of law and facts relating to patentability and the exclusion of patent which needed to be examined on the basis of evidence. On the aspect of the form of evidence placed and accepted by the Division Bench of the Delhi High Court, the Apex Court observed:

“23…….The Civil Procedure Code provides a detailed procedure with regard to the manner in which a suit instituted under Section 9, including a counter claim has to be considered and adjudicated. The Code mandates a procedure by settlement of issues, examination and cross examination of witnesses by the parties, including discovery/inspection of documents, culminating in the hearing of the suit and decree. A suit can be disposed of at the initial stage only on an admission inter alia under Order 12 Rule 6 or when the parties are not in issue under Order 16 Rule 1 and the other grounds mentioned therein, none of which are applicable herein. We are therefore satisfied that the Division Bench ought not to have disposed of the suit in a summary manner by relying on documents only, extracted from the public domain, and not even filed as exhibits in the suit, much less examination of expert witnesses, in the facts of the present case. There is no gain saying that the issues raised were complicated requiring technological and expert evidence with regard to issues of chemical process, biochemical, biotechnical and micro- biological processes and more importantly whether the nucleic acid sequence trait once inserted could be removed from that variety or not and whether the patented DNA sequence was a plant or a part of a plant etc. are again all matters which were required to be considered at the final hearing of the suit.”

On the basis of its observation, the Apex Court remanded the suit for injunction before the Single Judge for disposal as per law.

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