INDIAN SUPREME COURT HEARS MONSANTO PATENT CASE

The Indian Supreme Court is set to hear a remarkable case brought against the Indian government, prospectively, for failing to contest a European patent given to Monsanto that may or may not cover a variety of Indian wheat called "Nap Hal." Read the New Kerala News article here. Two things are noteworthy about this case, it seems to me. First, whatever your position on GMO's, you've got to figure out how you stand toward the intimately related issue of agricultural patents (the advance of GMO's implies an advance in the global patent regime). I don't know enough about this particular case to know whether or not the particular patent actually does cover the wheat in question. If it does, though, someone has made an error, either in this particular case or in establishing the rules of a patent regime that allows for multinational corporations to appear to claim rights to staple food products available widely in places like India. And it is no answer to say that such errors will be part of the emerging bio-patent regime. The costs of rectifying such errors may fall upon governments that are ill-equipped to defend their citizens' interests in international judicial forums. [Not saying that India is necessarily such a country, but it might be.]

The second important thing about this case is that it reveals something about the power of the Indian Supreme Court. Here, petitioners have taken the central government for failing to contest a patent before the deadline for that contestation has even passed. Conceivably, then, the Court could order the government to act to defend the national interest by filing the requisite judicial paperwork before the deadline this week. Now I don't know enough about the precise legal basis for such a challenge, but it seems to me remarkable that it is possible to ask the Supreme Court to tell the central government to act on such a matter. This means that the Court can have a strong hand in setting government policy by forcing certain items onto the agenda. Very interesting.