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Section 3(j) of the Patents Act: Plant Exclusions, Monsanto v. Nuziveedu, and the PPV and FR Alternative

13 min read In-depth analysis
Section 3(j) of the Patents Act: Plant Exclusions, Monsanto v. Nuziveedu, and the PPV and FR Alternative - Its IP Time

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Introduction

Section 3(j) of the Patents Act, 1970 expressly prohibits plants and animals – whole organisms, parts thereof, seed, variety, species of plant or animal, or essence of any of these- from being protected, with a sole exception to micro-organisms; equally prohibited by section 3(j) were processes for producing or propagating such plants or animals “essential biological”. Whilst this reads like a small carve-out for biology, reading this section within the context of the Patents Act and later within the framework of Indian plant protection law like the Protection of Plant Varieties and Farmers’ Rights Act, 2001, suggests that Indian patent law chose to delineate precisely where patentability must not, but protection must, start.

This decision is particularly sensitive within agriculture where a seed isn’t just a product; on one side rests the legacy of decade long breeding, on the other side generations of farming practices. By granting plant protection rights in such seed varieties with patent-like qualities, Indian law not only threatens age-old farming practices like saving, re-sowing and exchanging of seeds with neighbours, it does not provide any motivation for farmer’s or private companies to undertake the business of development of superior plant varieties in the first place. The crucial issue is not whether plant related inventions require protection; the business at hand is to determine as to what sort of protection should be given, and whether Indian law has succeeded in differentiating general biology from the development of real invention.

Section 3(j) of the Patents Act: Statutory Scope

You have to read 3(j) along with a couple of its neighbours as none of the sections operate individually. 3(c) exempts mere discovery of something found in nature – a plant discovered in a forest cannot be patented. 3(h) exempts methods of agriculture and horticulture per se. 3(j) exempts plants and animals as a whole or in part-including seeds, varieties and species. And it separately exempts processes for the production and propagation of plants and animals which are essentially biological.
So together, these three sections are doing one thing-keeping some space between the natural phenomena and phenomena having a true technical or inventive step. A farmer selecting for the best seeds for several seasons is in agriculture, not an inventor. A scientist introducing a particular gene sequence to a plant such that it produces a certain trait that it would otherwise not have arguably is somewhere different than 3(h).3(j) does not state that a patentable invention will fail if it uses a plant; it states that the plant will be excluded, and if the process is essentially biological to produce that plant, it is excluded. Where the step to manipulate the DNA using technology is involved, an enquiry can arise and this is what the Indian courts had to grapple with.

Judicial Interpretation: Monsanto v. Nuziveedu

Monsanto Technology LLC v. Nuziveedu Seeds Limited, (2019) 3 SCC 381 exemplifies the difficulties of defining that boundary where “real” biotechnology takes precedence over an abstract thought about patentable Subject matter. Monsanto possessed a patent for a nucleic acid sequence incorporated into its Bt cotton technology, which was licensed by way of a sub-licence agreement with Nuziveedu. Following differences on trait fees, infringement proceedings were filed by Monsanto and counter-claims filed by Nuziveedu based on the revocation of the patent under Section 3 (j), i.e., the patent should be revoked as, once the sequence was inserted in a cotton plant, the patent claimed a part of a plant, explicitly ruled out by Section 3(j) of the Act.
The Division Bench of the Delhi High Court supported the suit at the stage of summary judgement in Nuziveedu Seeds Limited v. Monsanto Technology LLC, 2018 SCC OnLine Del 8326 and refused to permit a trial, consequently striking down the patent. The Apex Court, disagreeing with this course of action, did not rule on whether the sequence fell outside the exclusive domain of Section 3 (j), finding it a mixed question of fact and law which called for expertise and technical findings to ascertain the scope of the patent so as to hold that such a question could not be disposed of summarily. Accordingly, the suit was remanded for a trial on merits.
The true teaching of this judgment is therefore somewhat limited from the impression given in media. The Supreme Court does not decree that gene technology inserted in plants falls within or outside section 3(j); rather, it finds that it is a question which is not answerable with reference solely to plead. This space separating exclusively non-patentable biology and patentable technology does not possess an “obviousness”, which can support a per se ban from the outset, thereby necessitating case-to-case determination based on technical investigation.

Policy Rationale: Excluding Biological Matter from Patents

  • There are really three separate rationales that underlie Section 3(j)-we really should tease them out instead of treating it as a single undifferentiated policy impulse.
  • First is with respect to farmer’s. Agricultural seed isn’t merely a market commodity: it is intrinsically linked to farming practice, to local knowledge and to the long-term process of conserving the genetic diversity of plants over many generations. Strong patent rights over plant varieties would give rights holders control over not only the sale of seed but potentially over whether a farmer can continue to save and replant their own seed. And that is a problem for living, reproductive materials in a way it simply isn’t for most manufactured products and seems central to why the legislature opted for separate treatment rather than subject plant varieties to ordinary patent law.
  • Second there are issues intrinsic to biological material; biological material and even plants and animals are self-reproducing and variable independent of human activity-a farmer’s seed this year is not the same as last year’s seed by reasons wholly unrelated to anyone’s inventive act. How to regulate those kinds of materials as commodities while respecting them as inherently dynamic, or not denying credit to the indigenous knowledge accumulated by generations over millennia that shaped them long before they reached formal breeding facilities becomes fraught with difficulty under traditional patent law that has for a long time focused on patentability where there is some inventive act of the mind that manipulates some form of patentable matter.
  • Third, we also have concerns that cut the other way; this cannot therefore be simply construed as an attack on the technology itself as is suggested sometimes about agricultural biotechnology since that area involves very real technical and economic investment and, where invention happens via that investment whether through traditional means or via genetic engineering of which perhaps Monsanto remains one very stark example, it seems as though it should receive some level of protection. And that’s why the struggle in the cases involving Monsanto is about whether patent claims refer to the plant itself or the innovation performed via the plant, and the question of how much weight the courts will accord to the argument about the need for invention.S

So essentially, instead of a single rationale, Section 3(j) embraces three related concerns which were in tension-the first two leading toward exclusion, and the third in opposition to exclusion of inventive matter, pulling together to explain why Section 3(j) resulted in an exclusion combined with a specific alternative sui generis mechanism instead of either absolute patentability or a lack of all legal protection.

The PPV&FR Act as the Sui Generis Regime

If patent law does not protect plant varieties, what does. India’s response is the PPV&FR Act 2001, an Act which deserves the consideration of a deliberate choice rather than a concession. The registration test introduced by Section 15, that of novelty, distinctiveness, uniformity and stability-distinct and indeed separated from that applied for patent registration-novelty, inventive step and industrial application, shows that the Act is not attempting to cram plant breeding into a patent-shaped hole. Rather, it creates an appropriate regime for a plant variety and a test that applies directly to what a plant variety is, a novelty rule that examines the period of sale or production or harvested material for commercial purposes prior to an application rather than a stricter, prior filing approach.
Section 28 gives the registered owner (or a person authorised by her) sole possession rights: exclusive right to ‘produce, reproduce, propagate, multiply and sell, market, export, import’ the new variety. Breeders, it seems, did not lose commercial rights upon becoming subject to the PPV&FR regime as they were provided with them through the same Act that excluded them from patentability.
What the PPV&FR Act includes, that patent law lacks, is described in Section 39. An author of a new variety born out of or developed through breeding or other processes has a right to be registered as a breeder in his own right. Farmers’ varieties also have a right to be registered as new varieties under the statute and farmer’s contributing to conservation have the right to be given recognition/reward from the Gene Fund. Farmers also have the right ‘to save, use, sow, re-sow, exchange and share seeds of a registered variety’, with the one condition that they will not sell the seeds of a registered variety under a registered brand name.
The specific provision carving out of registered brand name protection, indeed seems to contain the entire basis of the balance maintained within the Act – commerciality granted by the statute tied to specific registered brand name(s), with continued free utility of the varieties by the farmer’s.
A public interest valve also exists-after three years an application may be made for a compulsory license, if public requirement for a registered variety or its propagating or producing material is not met or is not met at a reasonable price. This option to apply for such rights against breeder’s not fulfilling this requirement doesn’t appear readily in patent law, confirming the intention that the rights granted should exist to benefit the public.

Testing the Regime: PepsiCo India v. Kavitha Kuruganti

In the contest between PepsiCo India Holdings and Kavitha Kuruganti over a newly developed potato variety, FL 2027, can we observe how the above stated provisions operate in reality where an established corporate breeder faces the challenge posed by an applicant acting in public interest.
PepsiCo had registered FL 2027 under assignment from original breeder’s, with first commercial sale of the varieties in December 2009 while claiming creation right with effect from an assignment deed made in 2003. Kuruganti, acting for an agricultural cooperative, filed a revocation petition before the PPV&FR Authority under Section 34.

The order of revocation itself was initially opposed by PepsiCo in the Delhi High Court, and the Single Judge allowed part of the case and rejected part and kept it revokable. Subsequently, the single judge was in appeal by both parties in the Division Bench and the resulting Common judgment is subject of PepsiCo’s appeal before the Supreme Court, namely PepsiCo India Holdings Private Limited v. Kavitha Kuruganti, 2024 SCC OnLine Del 153.

By the time this case has reached Supreme court, Kavitha Kuruganti v. PepsiCo India Holdings Private Limited, 2026 INSC 811 (order dated 5/8/2026), only one question remained on point, and that is whether Section 34(h), (public interest point), stood satisfied by the fact that PepsiCo has filed various suits against individual farmer’s. Kuruganti pointed that High Court has not properly dealt this issue and had rather avoided it whereas the Supreme Court clarified that High Court has indeed tackled this issue directly-i.e., there is nothing on record on the basis of which these suits have to be labeled as vexatious and/or predatory, and instituting suits to exercise rights can’t per se be a method of intimidation. Thus the appeals were dismissed. Although the registration does remain with this order, it provides protection narrowly yet real.

Bench clarified that there is nothing precluding an individual farmer’s’ sued for infringement from raising a defense based on Section 39(1)(iv) against such suits and proving they fall within the conditions stipulated therein-i.e., to save, use, sow, resow, exchange, share, or sell the farm-produces including seed of a plant variety not later than within three weeks before it is ready for marketing after harvest.

Also, there is nothing precluding PepsiCo from exercising such legal rights, which they may deem are being infringed. Unlike Monsanto, what this case has NOT raised is a question as to where biology ends and technology begins at all-nobody asked whether a potato variant should have been patentable. Instead, the entire fight is within the sui generis system over whether Section 34(h), on the same public-interest ground, should be allowed to stand, to make a registration revocable based on existence of infringement suits.

In the end, Supreme Court said no. This is the reason why Section 39(1)(iv) is available to farmer’s. A more precise outcome than either victory; the registration stays, so does the statutory right, albeit it is applied now on an individual, rather than collective basis.

International Framework and India’s Policy Choice

India’s approach also fits well with the flexibility that Article 27.3(b) gives in the Agreement on Trade-Related Aspects of Intellectual Property Rights. Article 27.1 says that patents should be available for inventions whether they are products or processes in every field of technology. This must meet the rules for novelty, inventive step and industrial applicability. Article 27.3(b) on the other hand allows members to exclude plants and animals other than microorganisms and also the main biological processes that make plants and animals but it still requires that plant varieties be protected, either by patents by a strong sui generis system or by a mix of these options.

India did not choose to ignore plant variety protection when plants were excluded from patents. Instead India used the flexibility, in law and established a special system through the Protection of Plant Varieties and Farmers’ Rights Act of 2001.

This choice matters because India could design a protection system that supports both breeding and the interests of farmer’s and traditional agricultural communities.

Conclusion & Policy Debate

None of this arose by accident. Article 27.1 of TRIPS makes a patent available to the invention of every field of technology, provided it satisfies the conditions of novelty, inventive step and industrial applicability. The only explicit exception to that requirement appears at Article 27.3(b), where Members may exclude plants and animals other than microorganisms, and essentially biological processes for their production but only ‘provided they protect plant varieties through patents or through sui generis system, or any combination thereof’. This is precisely the flexibility Indian law adopted. India choosing not to grant patents on plants under section 3(j) therefore was not an invitation to open up the market to all claims; this was the first element of a two part process, with PPVFR being the second part, developed around India’s unique agricultural needs and rather than taken wholesale from patent doctrines. Where is the problem then?. Not, I believe, with arguing to liberalize section 3(j) and allow more biotechnological matter through the patent door (since Monsanto demonstrates this already is not a blind effect, as courts still require genuinely technical claims to be tested according to the evidence rather than dismissed early).

The greater issue appears with the PPVFR. Here, the PepsiCo litigation shows exactly where the issue lies: at the court’s disposal section 34(h), allowing revocation due to abuse of plant variety rights, was shown not to be supported on the facts of the case, as simply using the registered right to bring lawsuits against farmer’s was not abuse. However, section 39(1)(iv) withstood scrutiny; not as automatic grounds for revocation of a right but as a defense the individual farmer must still argue and demonstrate in court.
This is now far less about whether plants belong in the patent system (I’ve made my argument for ‘no’), than about whether protection that must be fought for on individual farmer by individual farmer, suit by suit basis actually succeeds in providing the protection which PPVFR sets out to achieve.

Also Read: Healthium Medtech v. Registrar of Trade Marks: Madras HC Directs Expedited Processing of Trademark Application

References

Legislation and Statutory Materials

International Instruments

Cases

Official Institutional Sources

Written by

Kriya Shah Pankaj

Final year B.A., LL.B. Student

Indian IP Law Trademark Patent Copyright

Currently pursuing her fifth year of B.A., LL.B. at Kes Shri J.P. Law College, Mumbai University. Her primary areas of interest are Intellectual Property Law, Corporate Law, and Data Privacy.

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