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TMI Blog2019 (1) TMI 1980X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding 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. 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 microbiological 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. The Division Bench ought to have confined itself to examination of the validity of the order of injunction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2018 instituted Civil Suit (Comm) No. 132 of 2016 seeking permanent injunction against the Defendants from using the trademark BOLGARD and BOLGARD II brand cotton technology, violating the registered patent No. 214436 of the Plaintiffs, and also to further restrain the Defendants from selling and or using seeds/hybrid seeds bearing the patented technology, infringing the registered patent of the Plaintiffs, along with rendition of accounts. The parties shall, for convenience, be referred to by their position in the original suit. 3. The Plaintiffs pursuant to their patent rights had entered into a sub-licence agreement dated 21.02.2004 with the Defendants for an initial period of ten years. The agreement entitled the Defendants 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. The agreement also provided for payment of licence fee/trait value by the Defendants, for use of the Plaintiffs' patented technology. The agreement after extension was ultimately terminated by the Plaintiffs on 14.11.2015 due to disputes regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fee/trait value payable by the Defendant shall be governed by the laws in force. The learned Single Judge simultaneously only issued notice on the counter claim No. 51 of 2016. The order of injunction dated 28.03.2017, therefore did not deal with or consider the counter claim. It was prima facie observed that the Defendants having had the advantage of a sub-licence ever since 2004, appeared unjustified in contending that they were not bound by the obligations under the agreement in view of the claimed statutory protections vis-a-vis the suit patent or the registered trademarks. Prima facie opining that the termination of the sub-licence agreement by the Plaintiffs on 14.11.2015 appeared unjustified in view of the statutory price restrictions, the termination was held not to be of any consequence. 6. Aggrieved, both the Plaintiffs and the Defendants preferred appeals. The Division Bench dismissed the Plaintiffs' appeal upholding the Defendants' contention with respect to patent exclusion Under Section 3(j) of the Act and that the Plaintiffs were at liberty to claim registration under the PPVFR Act, as the two Acts were not complementary, but exclusive in the case of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e scope of the patent, so as to allow or disallow the relief of injunction. It is incomprehensible that the Plaintiffs holding a valid registered patent under the Act nonetheless would have agreed to a summary consideration and validation/invalidation of the patent. The patent comprises of a DNA construct or nucleotide sequence in claim 25-27 comprising of three different components, i.e. (i) a promoter (ii) a man-made gene for the production of Cry2Ab5-endotoxin and, (iii) a third component for the production of a transit peptide 6. The DNA construct so created did not exist in nature and upon insertion into a plant confers insect tolerant trait. A plant is next produced as a fusion protein which comprises the Cry2Ab S-endotoxin 7 bonded with the transit peptide. The subject patent claims use of bacillus thuringiensis strain and the development of two genes designated Cry2Aa and Cry2Ab. Each gene sequence is known for its ability to synthesize proteins with pesticidal properties. The NAS is not a living organism but a chemical created in a laboratory. The event which is the positioning of the NAS at a unique location in the genome of a plant cell is a separate, subsequent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely a species. The PPVFR Act came into effect from 2007 and in the last 11 years, no infringement action has been filed under the same or injunction obtained. The department of bio-technology on their official website has acknowledged the role agro-biotechnology has to play in feeding billion plus mouths in this country and the role that novel genes can play to deal with biotic and abiotic stresses, enhance productivity and nutritional quality. 12. Sri Neeraj Kaul submitted that the patented NAS is not the creation of any biological process. The correct admixture of the promoter, the man made gene for the production of Cry2Ab endotoxin and the 3rd component for the production of the transit peptide leading to the DNA construct, is entirely the creation of the human intervention. The Division Bench wrongly holds the invention to be a plant variety. It is only plant varieties and seeds which are covered by the PPVFR Act. The Patent Act and the PPVFR Act are mutually exclusively. 13. Shri Vishwanathan leading the arguments on behalf of the Defendants submitted that no patent rights can be exercised with respect to genetically modified cotton planting seeds being develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecomes an inseparable part of the plant at the sub-cellular level by an irreversible biological process. It exists in every cell of the transformed plant. It not only expresses in the plant to produce endotoxin but also inherits into progeny plants in perpetuity. It does not result in a product which can be put into a vial and sold as such. The claims must be construed so as to give an effective meaning to each of them but the specifications and the claims must be looked at and construed together. 15. Shri Jayant Bhushan submitted that the Plaintiffs did not bring the NAS in a vial and but imported plants seeds containing NAS. These seeds were not protected by Patent. Indian seed companies were given donor seeds which already had the NAS/Bt. Trait integrated in them and was capable of germination. What the Indian Seed companies do is to cross one of the Plaintiffs' plants with the plants of their proprietary Indian varieties suitable for cultivation in India, to develop a third/new cross-bred cotton variety which would have the Bt. trait from Plaintiffs' variety so as to resist Bollworm and other traits from their own developed varieties. Since the Indian Seed Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(j) was not applicable, still the patent claim could never permit Plaintiffs to claim the right to prevent farmers from making, using, offering for sale or selling plants or seeds of the cotton plant that contain Bt. gene. The patent of an artificial gene and the process for inserting it into the genome of a plant, will not entitle the exercise of rights Under Section 48 of the Act in respect of a plant that contains the artificial gene on which it has a patent. The protection Under Section 48 of the Act is capable of being exercised against other biotechnology companies that seek to replicate the Bt. gene product or the process of insertion of that gene in the genome of the cotton plant. Both the Patents Act and PPVFR Act have a link that is to protect the interests of the farmers so that they are not burdened by exorbitant rates of seeds. 18. Shri Prashant Bhusan, Shri Sanjiv Sen, and Smt. Anandita Mitra on behalf of the interveners submitted that the NAS is not capable of industrial application unless it becomes a part of the plant cell where it is expressed by the plant cell through essentially biological processes of transcription, translation, and replication, to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduction of a fusion protein is critical in this respect for the technology to be effected in plants. The bacillus thuringiensis strain does not produce such a fusion protein. It is the Plaintiffs' claim that it is only its technology that allows a cotton plant to produce the Cry2Ab 8-endotoxin protected inter-alia by claims 25-27 of the patented inventions. The subject patent claims the use of Bacillus thuringiensis strain and development of two genes designated Cry2Aa and Cry2Ab. Each gene sequence is known for its ability to synthesize proteins with pesticidal properties. 21. It is the contention of the Defendants apart from the unpatentability of the Plaintiff's claim, they have not violated patented rights, if any, as: a) Nuziveedu sowed seeds of their proprietary cotton varieties alongside the Transgenic Bt. Cotton seed. b) The Transgenic Bt. Cotton seed and the Nuziveedu's varieties seed yielded different plants, which were cross-pollinated at the flowering stage. c) The cotton fruits from the Nuziveedu's cotton varieties had cotton seeds, which were carrying the proprietary hybrid ( Bt. cotton hybrids ) d) Nuziveedu conducted extensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 microbiological 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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