vendredi, décembre 31, 2010

Comment porter plainte par voie postale?

Vous portez plainte auprès du procureur de la République à la suite d’une infraction dont vous avez été victime

 

Si vous êtes victime d’une infraction, c’est-à-dire d’une action ou d’une omission définie par la loi pénale et punie de peines fixées par elle, vous pouvez porter plainte. Par exemple, vous avez été cambriolé(e), escroqué(e), vous êtes victime d’une tromperie commise par un professionnel sur l’origine d’un produit ou sur les qualités d’une prestation de services.

 

Vous pouvez porter plainte pour voir l’auteur de l’infraction condamné et demander une indemnisation en vous constituant partie civile.

 

La plainte peut être adressée par lettre recommandée avec demande d’avis de réception au procureur de la République du tribunal de grande instance du lieu de l’infraction ou du domicile de l’auteur de l’infraction si vous le connaissez, ou être déposée au commissariat de police ou à la gendarmerie, si possible les plus proches du lieu de l’infraction. N’oubliez pas de joindre tous les documents de preuve : contrat, factures diverses (réparations…), constats en cas de dégâts matériels, etc.

 

 

 

Madame, Monsieur le Procureur de la République,

 

J’ai l’honneur d’attirer votre attention sur les faits suivants (exposez ici les faits constatés avec le maximum de détails, ainsi que le lieu et la date auxquels ils se sont produits, précisez s’il y a des témoins).

 

En conséquence, je porte plainte contre (identité de la personne physique ou du représentant de la personne morale, auteur présumé) demeurant à (adresse) (ou) contre X (si vous ne connaissez pas l’auteur des faits ou si vous avez une incertitude) pour (indiquez l’infraction si vous la connaissez) et toutes autres qualifications qui pourraient se révéler utiles.

 

Vous remerciant de bien vouloir m’informer des suites que vous donnerez à cette affaire, je vous prie d’agréer, Madame, Monsieur le Procureur de la République, l’expression de mes salutations distinguées.

 

(Signature)

 

jeudi, décembre 30, 2010

Puerto Rico: Technology transfer: the way forward

Technology transfer: the way forward

Contributed by Ferraiuoli Torres Marchand & Rovira

 On October 15 2010 the Legislative Assembly of Puerto Rico approved Act 150 to sponsor and promote the participation of academics, professors and researchers from the University of Puerto Rico in the development of intellectual property and the transfer of technology into industry. The assembly hopes to increase research into and the development of technology in Puerto Rico's academic arena, thereby creating new opportunities for companies and for the creation of jobs, and enabling new products to be placed on the market, through the adoption of federal public policy as expressed in statutes such as the Small Business Patent Procedures Act, the Bayh-Dole Act and the Cooperative Research and Technology Enhancement (CREATE) Act of 2004. The policy has also been adopted by several US states, including Florida, Massachusetts, New Mexico and Oklahoma. With this long overdue step, Puerto Rico has moved in the right direction with regard to intellectual property and technology.

Technology transfer is the process through which new technology is passed from the academic realm into the public sphere for the public's benefit and enjoyment. One of the essential elements of this process is the ability of professors to license works created within the universities in order to further their development. Equally important is the professors' ability to consult with and work alongside companies in the development process and in the creation of intellectual property. Previously, University of Puerto Rico professors, researchers or academics were not allowed to license such works or work alongside commercial entities. Under the previous regime, professors and alumni of the university carried out research activities that would often generate patents and intellectual property with commercial potential, but which, because of the legal prohibitions, could not be used for the benefit of society. As a direct result, the university's progress has been hampered.

Advances made in universities in fields such as medicine have the potential to yield tremendous benefits for the population in general. Empowering academics to interact in the IP development process within industry, obtain licences and play a central role in disseminating new products into the public domain is a necessary next step in the evolution of this process. The transfer and growth of technology in Puerto Rico will be indispensable in the future economy of the island. Indeed, such considerations have been a driving force behind Puerto Rican public policy. Act 150 states that:

"the public policy of promoting the academic participation in the development and transfer of technology is to prevail and take preference over any other statute, regulation, rule, letter or other applicable body of law that may interfere, delay, limit or prohibit the transfer or commercialisation of technology that is a product of university work and/or research."

Act 150 amends the Government Ethics Act of 1985. The Ethics Act was created, among others, in order to protect the integrity of the government and its officials' work. It expressly prohibited contracts being made between government entities and the private sector, and established penalties for public officials that failed to comply with its impositions.

With the amendments contained within Act 150, the prohibitions on contracts and interactions with the private sector will not apply to:

  • contracts established by an agency of the executive branch of the government for the acquisition of property rights of any literary or artistic works of art, as well as the patents or inventions of its employees; and
  • contracts, agreements and/or licences that are granted in order to facilitate the research, transfer of technology and commercialisation of the intellectual property developed by members of the university, provided that they are approved by the university president.

However, to ensure that proper supervision of the activities comprising public employees is still enforced, the president will have 90 days after the end of each fiscal year to submit a report to the Office of Governmental Ethics of all transactions approved pursuant to Act 150 during the year.

Act 150 also requires that the university establish a regulation describing the public policy behind this initiative. The regulation must also include the guidelines that must be complied with in order for the contracts and negotiations allowed under Act 150 to be valid and enforceable. Finally, the regulation must be prepared with and approved by the executive director of the Trust for the Sciences, Technology and Research of Puerto Rico.

Puerto Rico's legal structure and public policy relating to the advancement of research and the development of technology is finally looking to the future.

For further information on this topic please contact
Eugenio J Torres-Oyola, Laura Belendez or Maristella Collazo at Ferraiuoli Torres Marchand & Rovira by telephone (+78 7766 7000), fax (+78 7766 7001) or email (etorres@ftmrlaw.com, lbelendez@ftmrlaw.com, or mcollazo@ftmrlaw.com).

 

jeudi, décembre 16, 2010

United Kingdom: Olympic brand protection at London 2012

Olympic brand protection at London 2012

Contributed by Reynolds Porter Chamberlain LLP


Introduction

As the 2012 Olympic Games approach, many UK companies may be thinking about marketing and the leverage to be gained from the surrounding publicity and excitement, especially as the government has promoted the Olympics as being good for UK businesses. However, any such thoughts must take account of the legislation in place to protect both the games and their related words or symbols. Such legislation is designed to prevent companies that are not part of the official sponsor programmes from associating themselves with the Olympics.

Companies must now take into account the Olympics, Paralympics and London Olympics Association Rights (Infringement Proceedings) Regulations 2010, which came into force on November 8 2010. The regulations set out various remedies available to the organisers of the London games in the event of proscribed references to the Olympic Games.

Organising committee

The London Organising Committee of the Olympic Games and Paralympic Games is responsible for preparing and staging the games in 2012. Its funding comes mainly from the private sector - a total of £2 billion is expected to be raised from sources including sponsorship and the sale of merchandise. The organising committee is tasked with preventing unauthorised association with, or use of, the 2012 brands. Its website describes the 2012 brands as being "vital to the funding of the games" and as the games' "most valuable asset". The organising committee is already busy policing infringements of rights granted to it under the two acts set out below.

Brand protection

Logos, symbols and mottos of the games are protected by a combination of hard-hitting legislation, registered trademarks, copyright, registered Community designs and common law. The key pieces of legislation preventing unauthorised association with the 2012 games are:

  • The Olympic Symbol etc (Protection) Act 1995, which created a general 'Olympic association right', giving protection to the Olympic symbol, the Olympic motto and certain key words such as 'Olympiad' and 'Olympian' and prevents representations of anything similar that is likely to create an association with the Olympic Games or the Olympic movement in the public mind.
  • The London Olympic Games and Paralympic Games Act 2006 created the 'London Olympics association right', which prohibits representations from being made in relation to goods or services which are likely to suggest to the public that there is an association between those goods or services and the London Olympic Games or Paralympic Games.

The new regulations are made under these two acts. They give the courts new powers in relation to goods and materials that are found to infringe the London Olympics association right.

New powers

The new powers are wide ranging and reflect the rights available under the Olympic Association Right (Infringement Proceedings) Regulations 1995 relating to infringement of the Olympic association right.

They provide that:

  • where a person has infringed the London Olympic association right, the court may order erasure (or "obliteration") of a representation that infringes the association right (ie, the relevant logo or mark) from infringing goods, material or articles. In the event of non-compliance with the order, or if the court believes that compliance is unlikely, the court may order the goods to be delivered up for destruction; and
  • the organising committee may, up to December 31 2012, apply to the court for an order that infringing goods, material or articles in a person's possession in the course of a business be delivered up to it, or to such person as the court directs. In addition, the organising committee may apply to the court for an order that infringing goods or material which have been delivered up may be destroyed or forfeited. Note that if the court decides that no such order should be made the person who had possession of the articles before they were delivered up is entitled to their return.

The orders may be made by the High Court in England and Wales, the High Court in Northern Ireland and the Court of Session in Scotland.

Comment

The protection given to the 2012 games is wide ranging and the organising committee has clearly set out its view of how broadly it considers its powers to extend. This has led to the games being referred to in some marketing circles as 'the event that dare not speak its name'. Among the many examples in the available guidance, the organising committee suggests that a hotel offering an 'Olympic Games package' would be viewed as offering a Games-themed promotion and would be likely to be in breach of the legislation. Therefore, companies are advised to tread carefully when referring to the games in material or on goods that they produce, as any association with the games could spell trouble.

For further information on this topic please contact Oliver Bray or Lisa-Jayne Pickford at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (oliver.bray@rpc.co.uk or lisajayne.pickford@rpc.co.uk).

 

Switzerland: Private pirate hunt declared illegal by Federal Supreme Court

Private pirate hunt declared illegal by Federal Supreme Court

Contributed by Froriep Renggli


A recent Federal Supreme Court decision which relied on data protection law to end the systematic private investigation of pirates on peer-to-peer networks has upset copyright holders. The defendant company - the Swiss firm Logistep AG - specialised in searching for copyright violators on peer-to-peer networks by means of specifically designed software. Logistep used the software for the systematic collection of internet protocol (IP) addresses and other data relating to peer-to-peer users.

The company regularly transmitted user data corresponding to illegal offers for downloads of material under copyright protection, in particular music and videos, to copyright owners. The copyright owners could then file a criminal complaint against unknown parties in order to ascertain the identity of the pirates. Once the criminal investigation authorities had required the internet service providers to reveal the identity of the individuals behind the temporary IP address, the copyright owners could discover the identity of the pirate by exercising their right to access the investigation files. Having discovered the identity of the infringer, the copyright owners could file a claim for damages before a civil court using the data provided by Logistep as proof of the infringement.

The Federal Supreme Court was asked by the Federal Data Protection Commissioner to rule on Logistep's methods. The Commissioner's claim had been rejected at first instance by the Federal Administrative Court.

In a first step, the Federal Supreme Court stated that IP addresses constitute 'personal data' in the sense of the Federal Act on Data Protection because they allow the identification of a web user, albeit only indirectly, by means of a criminal complaint. According to the court, information qualifies as personal data if, according to general life experience, it allows the identification of the person concerned with an effort that may reasonably be expected from a person interested in his or her identity. This was considered the case here as the IP addresses did actually allow the clients of Logistep to ascertain the users' identities. In this regard, the Federal Supreme Court also relied on the fact that IP addresses have been considered as personal data by the independent EU Advisory Body on Data Protection and Privacy. Interestingly, a German court in Hamburg ruling on the same question recently stated that IP addresses were not protected by German data protection law because they do not allow personal identification with the usual means and without additional information.

The court held that the collection of personal data by Logistep without the knowledge of the data owner was illegal pursuant to the act.

In a second step, the court examined whether the infringement of data protection law could be justified by the private interests of the copyright owners, weighing their legitimate interest in identifying pirates in order to protect their copyright against the interests of peer-to-peer network users in protecting their privacy. According to Article 13(1) of the act, the collection of data which infringes data protection provisions is not illegal if it is justified by an overriding private interest. The existence of such legal justification depends on the circumstances of the individual case.

In its statement of reasoning, the court held that the defendant, pursuing commercial interests only, used practices that resulted in insecurity as to the methods used on the internet and the scope and type of online data collection. The interest in the fight against copyright infringements could not balance the resulting infringement of personality rights and the insecurity regarding data collection on the internet. The thinking behind this brief reasoning seems to be that the interests of web users in having their privacy protected must be valued higher than the merely commercial interests of copyright owners. The court considered the data protection infringement to be serious, as data from a large number of users was collected without their knowledge. The judges were apparently concerned that the collection of the data relating to so many users had led to so few convictions. They also found that Logistep's methods infringed the principle of telecommunications secrecy, which is protected by the Constitution.

As a result, the court ordered Logistep to cease the collection and processing of data. It stated that its decision did not purport to give data protection priority over copyright protection in general but that it is the legislature's responsibility to enhance online copyright protection. The decision may also be interpreted as demonstrating a reluctance to allow private investigation that trespasses on data protection rules in an area where legal measures should be taken by the state. The scope of the decision will presumably be limited to cases of systematic search for infringers of IP rights by means of specialised software which result in a systematic collection of personal data.

For further information on this topic please contact
Laurent von Niederhäusern or Nicola Benz at Froriep Renggli by telephone (+41 44 386 6000), fax (+41 1 383 6050) or email (lvniederhaeusern@froriep.ch or nbenz@froriep.ch).

 

Italy: Case law lessons on design protection

Case law lessons on design protection

Contributed by IP Law Galli


Italian case law has dealt extensively with issues surrounding the protection of design. However, few decisions relate purely to designs, as the different methods of protecting product shapes are closely linked.

Differing scopes of protection

This interconnection is exemplified by the order issued by the specialist IP division of the Court of Turin on March 20 2008 concerning the external shape of the Smart car, in which protection was granted for the design both as a registered model and as a shape trademark, with different scopes of protection.(1) One of the allegedly infringing car designs was held to fall foul of both types of protection, whereas the shape of a different car was held to amount only to unregistered trademark infringement, with the registered model claim being dismissed. The court stated that:

"The exclusion of the infringement of a Community design on the grounds that the allegedly illicit product actually creates a different overall impression... does not prevent [the court] from finding that the same product amounts to an infringement of the same shape, as registered as a Community trademark, since the two IP rights at issue each perform different functions and enjoy a different scope of protection, that of the trademark being much wider, and considering also that the relevant public is different (ie, the average consumer for trademarks and the much more attentive... informed user)."

Two key tests

Two distinctions are particularly relevant in model infringement litigation in Italy: overall impression versus likelihood of confusion, and the view of the average consumer compared with that of the informed user.

A decision by the specialist IP division of the Court of Milan on January 17 2006 indicates a significant aspect of the courts' approach.(2) The case concerned a well-known screwpull corkscrew design and the protection available to it as an unregistered trademark. The court ruled that the shape of a product can be protected, even if it is not registered as a mark or a design, on the basis of a reputation that leads the relevant consumers to perceive it as a symbol of the manufacturer. It has been noted that:

"distinctive character and individual character may be placed on a par, since they are both based on the perception of the public, but they protect two different functions of the product shape. Individual character relates to the shape per se, whereas distinctive character relates to significance or meaning that is additional to the mere shape itself - that is, the other possible messages and implications communicated by the shape."(3)

The latter significance is usually a result of the product's use. As a result, individual character does not equate to distinctive character:

"as the two concepts are differentiated essentially on the basis of the parties to whose judgment reference is made - the average consumer in the case of distinctive character and the informed user for individual character."

Moreover, the same commentator remarked that:

"[i]n this regard, a further step could be taken in saying that the relationship between individual character and the use of a shape and the success that a product attains on the market also differs from the relationship between individual character and distinctive character. However, there is a form of cause and effect relationship between the two, in the sense that individual character may be a vehicle for the success of a shape on the market, while distinctive character is a possible consequence of such success, in the sense that individual character may be a vehicle for success."

Most experts would agree, with the caveat that the perception of a shape as aesthetically significant is often linked to the advertising and other communications that accompany it. Thus, there is a significant distinction between a sign (with a meaning or significance) and a shape in itself.

Relationship between validity and scope of protection

Case law has also recognised the importance of the relevant public's perception in determining both the validity and scope of protection that shapes can enjoy.

On August 30 2007 the Court of Milan dismissed requests for an interim injunction and seizure order against a well-known Italian tap manufacturer.(4) The court accepted the opponent's argument, stating that a model is not infringed if the allegedly infringing product does not copy the features with which the general impression given by the protected model is principally associated - these represent the "prevailing characteristic visual feature". The ruling issued on appeal excluded the possibility of re-examining the case under unfair competition law, confirming that protection for shapes against unfair competition presupposes that they are non-functional and perceived as distinctive.

The particularly significant aspect of this case was that the model for which protection was sought and the allegedly infringing products were very similar in their most prominent features. However, these features were also common to many earlier products and models in a busy sector. Therefore, the court considered the model to be valid, given the limited scope available to a designer in the field, but restricted protection to the specific features that an informed user would perceive as new in comparison with previous products. As these features were not part of the allegedly infringing product, the infringement claim was rejected.

In addition, it was held that even if a sector is busy, a model is not entitled to protection if its new features do not create a different overall impression in the mind of the informed user. In practice, the 'busy sector' doctrine may be taken into consideration only in determining how an informed user would perceive and evaluate differences - the overall impression remains the sole criterion for assessing validity and infringement.

Although the Italian version of Article 6 of EU Regulation 6/2002 identifies the relevant test by stating that "the general impression on the informed user differs significantly from the general impression on such a user of any design or model that has been made known to the public", Article 33 of the Code of Industrial Property does not include the word 'significantly'. Italian case law has hitherto relied on the latter wording, even when the validity or assumed infringement of a Community design is being assessed, since the difference in wording is usually considered to be merely a translation error. Thus, a party is not required to show a specific degree of difference in the overall impression, but merely that the shape is perceived as different in the overall view of the relevant user.

Overall impression and the relevant user

The Court of Milan has also provided a landmark decision on overall impression.(5) The case concerned the infringement of a registered Community design for a model of door created by Lualdi SpA, an Italian firm which is a world leader in door design. The Outline door detaches completely from the wall and has the appearance of a separate piece of furniture or decoration. Lualdi claimed that its design had been infringed by another Italian firm. The defendant argued that the design was invalid and that no infringement had taken place. The court found that the design was valid and had been infringed by the defendant.

The court reached its conclusion on the basis of two general principles.

First, the court expressly defined the term 'informed user' as a purchaser who pays particular attention to the goods in question and usually compares goods before making a purchase, but is not an architect or a designer. Therefore, an informed user is a consumer. This definition is in line with the rationale underlying design protection - that is, to protect the shape or configuration of a design as a business tool on the market.

Second, the court stated that the individual character of a design may be the result of a combination of characteristics of previous designs, provided that the general impression conveyed by the new design differs from that of the previous models. This principle had not previously been explicitly recognised by an Italian court. This statement also appears consistent with the rationale of design protection, as combining pre-existing designs may be a fundamental part of a designer's work. Moreover, the perception of the relevant public (ie, informed users) was considered the central issue in design cases when determining the validity and scope of protection of a model. In this respect, prevailing characteristic visual features must be considered as a whole, as to consider them individually would contradict the 'overall impression' criterion.

The same argument was decisively applied in Fiat Auto Spa v Great Wall Motors Co Ltd.(6) The Court of Turin disagreed with the opinion expressed by the appointed court expert, as the prevailing characteristic features were identified in terms of "the general lines and proportion of shapes", irrespective of the differences concerning other features - particularly the front view of the cars - and the considerable creative freedom that a car designer is deemed to have.

Burden of proof

In design cases, the issue of burden of proof may be misleading. In Italian law, a design registration is presumed to be valid unless an opponent presents evidence that such a design does not meet the legal requirements for protection. Thus, the onus of proving invalidity is on the opponent. However, this burden relates only to the existence of previous models or products - it is the court's role to evaluate them. Similarly, in order to demonstrate infringement, the owner of the design registration need merely prove the existence of such a right and show that the product is manufactured or marketed in Italy, leaving the assessment of the infringement to the court. However, in the case of unregistered Community designs, protection is "conditional on proof being provided that the requisites for access to protection apply",(7) thus placing a particularly heavy burden of proof on the party seeking protection.

On September 8 2005 the specialist IP division of the Court of Bologna issued the first decision to grant protection in Italy to non-registered models on the basis of the regulation. The court stated that the holder had mentioned "the aspects of the product which give it its individual character" and had supplied evidence that the design had been made public within the European Union. Moreover, a comparison of the samples of the original product and that of the alleged infringer "demonstrate[d] such a level of similarity in the individual nature of the models as to render creative coincidence improbable".

Protection was accorded because the court found that the features which gave the product at issue its individual character (ie, the prevailing characteristic features), considered as a whole, had been copied.

Copyright protection

Italian law extends copyright protection to product shapes, but requires that such shapes have artistic value. Thus, such protection tends to be confined to design masterpieces, such as the famous Arco lamp.

Public perception is also decisive factor. In examining whether the shape of the Arco lamp could be protected by copyright, the Court of Milan held that "in assessing the artistic value of the work, its general perception in society and, in particular, in the cultural environment must be viewed as objectively as possible".

The lamp is also the subject of a case pending before the European Court of Justice(8) concerning the compatibility of the former Italian transitional rule on design (under Article 239 of the code) with EU law, as the Italian rule appears to limit copyright protection of designs by allowing parties that began copying such designs before the introduction of protection under Italian law (ie, as a consequence of the enactment of EU Directive 71/1998/EC) to continue such copying indefinitely. The advocate general's comments in June 2010 clearly stated that the Italian rule was inconsistent with the directive (for further details please see "Interim rules on copyright protection for designs in line with EU law").

The recent reform of the Code of industrial Property(9) introduced a new Article 239 which takes account of the advocate general's remarks. It provides that all such copy products manufactured in Italy after April 19 2006 (and those imported after April 19 2001) are pursuable as counterfeit, as the directive originally stated.(10) This rule ends a decade-long controversy and ensures that the world of Italian design enjoys rightful protection.

For further information on this topic please contact Cesare Galli at IP Law Galli by telephone (+39 02 5412 3094), fax (+39 02 5412 4344) or email (galli.mi@iplawgalli.it).

Endnotes

(1) In Giur Ann Dir Ind, 5282/2008.

(2) Ghidini SpA v Alexander Srl. The January 17 2006 decision was later upheld in an order of February 1 2006.

(3) See Brambilla, "Carattere individuale e capacità distintiva nella tutela delle forme registrate e non registrate", IDI, 2007.

(4) Faris Srl v IB SpA, upheld on appeal in a ruling of October 25 and 27 2007.

(5) See Galli, "Landmark decision on registered designed issued", World Trademark Review Daily, February 13 2009.

(6) Order issued on July 15 2008 and upheld on September 8 2008. See Giur Ann Dir Ind, 5305/2008.

(7) See Bogni, "La tutela della forma tra design non registrato, marchio di fatto, concorrenza sleale", Not Ord Consulenti, March 2007.

(8) C-168/09.

(9) See Law 131/2010.

(10) See Galli, "Vast reform of Industrial Property Code comes into force", in World Trademark Review Daily, September 24 2010.

 

India: Transgenic crops and IP rights

Transgenic crops and IP rights

Contributed by Singh & Associates




Introduction

Genetically modified (GM) crops are crops in which genetic engineering(1) is used to introduce the characteristic held within the genetic code of a micro-organism into a plant genome. The first GM crop was a tomato; since then, several crops have been genetically modified worldwide, including corn, soybeans and cotton. Bacillus thuringiensis (BT) is a naturally occurring bacterium that produces crystal proteins that are lethal to insect larvae. In India, the first BT GM crop to be developed was cotton in March 2002. Today, India is a prominent player in the area of research and experimentation into GM crops. In September 2007 BT Brinjal was approved by the Genetic Engineering Approval Committee(2) and cleared the proposals of biotechnology safety rules.(3) Further, in February 2008 the Supreme Court revoked its earlier ban on the approval of large-scale field trials of transgenic crops.(4) BT Brinjal is the first transgenic edible crop to be introduced into India.

Monsanto Holdings Pvt Ltd is a key player in transgenic crops and promotes such crops in India through Mahyco-Monsanto Biotech (a 50-50 joint venture between Monsanto and Maharashtra Hybrid Seeds Company).(5) Transgenic crops have a characteristic dependence on the following factors:

  • IP rights;
  • health issues;
  • environmental hazards; and
  • economic concerns.

Transgenic crops in light of IP rights

The protection and registration of IP rights over biotechnological processes with respect to transgenic crops may create monopolisation over such seeds or methodologies in regard to such crops or over the crops themselves. If created, such monopolies will directly affect the rights of farmers and may also adversely affect the earth's biodiversity. Farmers will have to buy climate-tolerant seeds for every crop cycle and will not be allowed to store or exchange seeds for replanting.(6)

Patents have been granted for DNA sequences from plants such as nutmeg, cinnamon, rubber, jojoba and cocoa, and the list is bound to grow as DNA sequencing becomes routine.(7) These patents are owned by biotech companies and, when farmers buy these crops, they must sign an agreement that prohibits them from using or replanting the seeds for the following season, which means that the seeds cannot be stored and must be bought again for replantation.

In Monsanto Co v McFarling (McFarling II)(8) McFarling, a farmer, obtained 1,000 bags of Monsanto's round-up-ready GM soybean seed from his local seed store. There was a technology agreement between McFarling and the company "not to save any crop produced from this seed for replanting". Contrary to the terms of the technology agreement, during two successive growing seasons, McFarling saved the second-generation seed from his soybean crop and replanted it. It was alleged that by saving and replanting, McFarling had infringed Monsanto's patents numbers 435 and 605 and had breached the technology agreement. The court upheld Monsanto's patent licensing practice of forbidding farmers from saving seeds from GM crops for replanting.

In India, patent number 232681 has been granted to the process which makes GM cotton resistant to insect damage. The invention is named as 'Cotton Event Mon15985 and Compositions and Methods for Detection'.

In the recent landmark European Court of Justice judgment in Monsanto v Cefetra(9) it was held that no protection should be given to patented DNA sequences in areas where they are not performing the specific function for which they were patented.

Farmers' rights under Indian law

The protection afforded to plant varieties is excluded from the realm of Section 3(j) of the Patent Law(10) and is instead covered under the separate Protection of Plant Varieties and Farmers' Rights Act 2001, which was enforced for that purpose.

The monopolisation of crops directly affects the rights of farmers. These rights are mentioned in Section 39 of the act as follows:

  • A farmer who has bred or developed a new variety will be entitled to registration and other protection in a similar manner as a breeder of a variety under this act;
  • A farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation will be entitled in the prescribed manner or with recognition and reward from the National Gene Fund, provided that the material so selected and preserved has been used as a gene donor in varieties registrable under this act;
  • A farmer will be deemed to be entitled to save, use, sow, re-sow, exchange, share or sell his or her farm produce, including the seed of a variety protected under this act, in the same manner as he or she was entitled before the coming into force of this act, provided that the farmer shall not be entitled to sell a branded seed of a variety protected under this act;(11) and
  • The farmer's variety will be entitled to registration if the application contains declarations as specified in clause (h) of Section 18(1).(12)

The planting of transgenic crops will lead farmers to depend on multinational corporations to buy the crops. This would be contrary to the farmers' right to save, re-sow, share or sell the variety of crops. Furthermore, if farmers replant, exchange or sell such transgenic seeds, they can be sued by these multinationals.

Effect of GM crops on farmers

GM crops have had the following effects on farmers:

  • Working on GM sowing farms can affect the physical health of farmers by way of itches and rashes;(13)
  • In some cases yields have remained low even after farmers have reverted to sowing wheat on their farmland;(14)
  • Farmers cannot re-sow the crops to replant the crop even after being given the right to re-sow under Section 39 as referred to above;
  • The cost of GM crops is high; it is not economical for farmers to buy them. The GM cotton seeds cost Rs1,850 per packet, even though it was not an edible crop. If BT Brinjal had been accepted in the market, it would have cost even more;(15) and
  • The production, distribution and control of seeds are regulated by the Seeds Act 1966, which makes no mention of GM seeds. This means that there is virtually no legal framework for monitoring the activities of multinationals that are creating monopolies in dealing with GM seeds.(16)

Transgenic crops also simultaneously affect the flora and fauna. They can lead to the destruction of indigenous varieties of crops. Foods produced using biotechnology have not been established as safe and are not adequately regulated. The production of crops that are resistant to certain pests and weeds may lead to 'superbugs' and 'superweeds' that are immune to existing methods of pest and weed management.

Comment

GM crops are supposed to be more nutritious and better in taste; however, if this is the case, why is the majority of the population not ready to accept them? It seems that acceptance may cause much greater harm to farmers, the environment, biodiversity and the economy. If GM crops are required to be introduced, a proper mechanism to check issues such as health hazards and whether such engineered crops are beneficial in the long term must be enforced. If IP rights protection is offered to technology for developing transgenic crops, it should balance the public rights and environmental issues with the monopolistic rights. There should be proper enforcement of laws relating to the protection of farmers' rights and interests, and at the same time due credit should be given to the rights holders and patentees. For example, according to the Patent Office guidelines, in order to safeguard farmers' interests, terminator gene technology, which prevents the re-cultivation of crops, is not patentable under Section 3(b), which states that any invention that is contrary to public order or morality, or which causes serious prejudice to human, animal or plant life or health or to the environment, shall not be regarded as an 'invention' for the purposes of the Patents Act.

For further information on this topic please contact Manoj Kumar Singh at Singh & Associates by telephone (+91 11 4666 5000), fax (+91 11 4666 5001) or email (manoj@singhassociates.in).

Endnotes

(1) Genetic engineering, also called genetic modification, is the human manipulation of an organism's genetic material in a way that does not occur under natural conditions. It involves the use of recombinant DNA techniques, but does not include traditional animal and plant breeding or mutagenesis.

(2) The apex body constituted in the Ministry of Environment and Forest under the Rules for Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms/Genetically Engineered Organisms or Cells in 1989.

(3) As prescribed by the Department of Biotechnology of the Ministry of Science and Technology, Government of India.

(4) See
www.indiainfoline.com/Research/Articles/Economics-for-everyone%E2%80%A6Bringing-the-BT%20Brinjal/9410170.

(5) See
www.icmrindia.org/casestudies/catalogue/business%20environment/BENV017.htm.

(6) See
www.climatechangecorp.com/content.asp?ContentID=5644.

(7) See
www.i-sis.org.uk/trips2.php.

(8) 363 F3d 1336 (Fed Cir 2004).

(9) C-428/08, July 6 2010.

(10) The following are not inventions within the meaning of this act: plants and animals in whole or any part thereof other than micro-organisms, but including seeds, varieties and species and essentially biological processes for the production or propagation of plants and animals.

(11) For the purposes of Clause IV, 'branded seed' means any seed that is put in a package or any other container and labelled in a manner indicating that such seed is of a variety protected under this act.

(12) Every application for registration under Section 14 must contain a declaration that the genetic material or parental material acquired for breeding, evolving or developing the variety has been lawfully acquired.

(13) "Farmers chip in against BT Brinjal",
http://timesofindia.indiatimes.com/india/Farmers-chip-in-against-Bt-Brinjal/articleshow/5515421.cms.

(14) Ibid.

(15) See
www.ndtv.com/news/india/why_farmers_dont_want_bt_brinjal.php.

(16) Ibid.