India: Effects of Tariffs and Nontariff Measures on U.S. ... - USITC

CHAPTER 9
Intellectual Property Rights <strong>and</strong> Related
Policies in the <strong>India</strong>n Seed Sector
Overview
U.S. <strong>and</strong> global seed firms identified intellectual property rights (IPR) as particularly
important to their operations in <strong>India</strong>. 1 Firms in other agricultural sectors, by contrast, did
not identify IPR policies as critical to their trade or investment decisions. 2 U.S. <strong>and</strong> other
global firms participate in the market mainly through the local research <strong>and</strong> development
(R&D) <strong>and</strong> commercialization <strong>of</strong> hybrid <strong>and</strong> genetically engineered, or biotech, seeds. 3
This local presence enables global firms to establish <strong>and</strong> maintain close connections with
customers <strong>and</strong> facilitates the development <strong>and</strong> regulatory approval <strong>of</strong> seeds tailored to
<strong>India</strong>’s specific agronomic conditions. 4
U.S. <strong>and</strong> other global firms have identified three factors as critical to increasing their
participation in the <strong>India</strong>n market: comprehensive <strong>and</strong> effective IPR laws, market-based
pricing, <strong>and</strong> science-based regulatory review <strong>of</strong> new seed technologies. In the area <strong>of</strong> IPR,
<strong>India</strong> has recently put in place a plant variety protection law, as well as patent provisions
for seed biotechnology inventions; however, industry sources indicated that broad
exceptions in the laws, delayed implementation, <strong>and</strong> uncertainty regarding enforcement
undermine the effectiveness <strong>of</strong> these protections. They also noted that state-level
restrictions on prices <strong>and</strong> time-consuming <strong>and</strong> unpredictable regulatory review impede
the commercialization <strong>of</strong> new seed technologies. In the absence <strong>of</strong> effective regulatory
review <strong>and</strong> IPR enforcement, industry sources claim that illegal <strong>and</strong> counterfeit seed
markets have flourished, to the detriment <strong>of</strong> legitimate products. 5
1 One IPR issue <strong>of</strong> substantial concern to producers <strong>of</strong> agricultural chemicals is <strong>India</strong>’s lack <strong>of</strong> protection
against the unfair commercial use <strong>of</strong> tests or other data that firms submit to obtain government marketing
approval for their products. Biotechnology Industry Organization (BIO), written submission to the
Commission, June 26, 2009, 3. Because chemicals are outside the scope <strong>of</strong> this investigation, the issue is
mentioned only briefly here.
2 Although not reported to be <strong>of</strong> primary importance, the value <strong>of</strong> trademarks to successful FDI in the
processed food <strong>and</strong> quick service restaurant sectors, <strong>and</strong> problems with the counterfeiting <strong>of</strong> spirits, were
issues raised by industry representatives during Commission interviews <strong>and</strong> are noted in chapter 8.
3 Although <strong>India</strong>’s domestic seed market is one <strong>of</strong> the largest in the world, imports account for only a
small portion <strong>of</strong> the market. The International Seed Federation (ISF) estimates the value <strong>of</strong> <strong>India</strong>’s domestic
seed market at $1.5 billion. See ISF Web site, http://www.worldseed.org/en-us/international_seed/home.html
(accessed June 20, 2009). The United States accounted for $6 million <strong>of</strong> <strong>India</strong>’s total planting seed imports <strong>of</strong>
$49 million in FY 2007–08. Singh <strong>and</strong> Kaul, <strong>India</strong>: Planting Seeds, December 17, 2008, 6.
4 Industry representative, interview by Commission staff, Mumbai, <strong>India</strong>, May 12, 2009; Monsanto <strong>India</strong>
Ltd., Annual Report 2007–2008, 2009, 16.
5 Industry representatives, interviews by Commission staff, New Delhi, <strong>India</strong>, May 4, 5, 6 <strong>and</strong> 9, 2009;
industry representatives, interviews by Commission staff, Mumbai, <strong>India</strong>, May 11 <strong>and</strong> 12, 2009; <strong>and</strong> industry
representatives, telephone interviews by Commission staff, January 21, March 30, <strong>and</strong> June 10, 2009. See
also BIO, written submission to the Commission, June 26, 2009, 2–3; USIBC, written submission to the
Commission, June 26, 2009.
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