Single Judge of Delhi HC to decide on Monsanto’s patent claim on Bt Cotton, Supreme Court

The Supreme Court today set aside a decision of a Division Bench of the Delhi High Court that had held Monsanto Technologies’ patent claim on its Bt cotton seed varieties to be unenforceable in India..The judgment was rendered by a Division Bench of Justices Rohinton Nariman and Navin Sinha in the appeal filed in May 2018 against the judgment of the Delhi High Court..While setting aside the judgment of the Division Bench, the Supreme Court restored the order passed by the Single Judge in March 2017. Further, the case also stands remanded to the Single Judge Bench for disposal on the question of whether Monsanto’s patent was infringed by Nuziveedu on Bt cotton seeds..The sub-licence agreement between the parties that was terminated at the behest of Monsanto, and gave rise to the litigation, stands restored as an ad-interim order after today’s judgment. This effectively means that Nuziveedu can continue to use Monsanto’s patented technology albeit upon payment of royalty until the final adjudication. The Judgment states,.“The order of the Division Bench is set aside. The order of the Single Judge dated 28.03.2017 is restored and the suit is remanded to the learned Single Judge for disposal in accordance with law.”.The dispute arose when under a sub-licence agreement between Monsanto Technology LLC and Nuziveedu Seeds Ltd, the former claimed royalties from the latter for supplying donor seeds of Bt Cotton for its breeding program..Nuziveedu’s case was that the end product of the breeding program has distinct characteristics of its own, and hence no royalties need to be paid by it. It argued that the gene or the method of transformation was not transferred to them, and only seeds of the transgenic variety were given..Monsanto, on the other hand, had claimed that since the donor seeds (produced by their own patented technology) were used by Nuziveedu to develop new varieties, they should continue paying royalties as per the original sub-licensing agreement..When Nuziveedu continued to sell its genetically modified seeds even after its sub-licence with Monsanto was terminated, Monsanto approached the Courts seeking an ad-interim injunction. Nuziveedu, in turn, challenged the termination of the sub-licence agreement..The Delhi High Court had in its decision held that Monsanto could not assert patentability on the genetically modified seeds produced by Nuziveedu through hybridization, and that the same claim does not find backing in the Patents Act. However, in this regard, the Supreme Court today observed,.“The Division Bench ought to have confined itself to examination of the validity of the order of injunction granted by the learned Single Judge only.” .Both sides were represented by a battery of Senior Advocates. Before the Supreme Court, Mukul Rohatgi, Abhishek Manu Singhvi, Neeraj Kishan Kaul and SN Mukherjee appeared for Monsanto, assisted by Rishi Agrawala, Karan Luthra, and Vishnu from Agarwal Law Associates, Junior Counsel Adarsh Ramanujan as well as Anand and Anand..Intervenor Federation of Seed Association of India was represented by Senior Advocate Kapil Sibal, who was assisted by Anand and Anand and Karanjawala & Co..Senior Advocates Aryama Sundaram, Jayant Bhushan, and KV Viswanathan represented Nuziveedu..Read the Judgment: