Sri Rama Agri Genetics (India) Private Limited Vs. Mahyco Monsanto Biotech India Limited & Others.

1. The information in the present case has been filed by Sri Rama Agri Genetics (India) Private Limited (hereinafter, the “Informant”) under Section 19(1)(a) of the Competition Act, 2002 (‘Act’) against Mahyco Monsanto Biotech (India) Limited (hereinafter, the “OP-1/MMBL”), Monsanto Holdings Private Limited (hereinafter, the “OP-2/MHPL”), Monsanto Company, U.S.A. (hereinafter, the “OP-3/Monsanto”), Maharashtra Hybrid Seeds Company Limited (hereinafter, the “OP-4/MAHYCO”) and Monsanto Technology LLC (hereinafter, the “OP- 5/MTL”) alleging contravention of the provisions of Sections 3 and 4 of the Act.

2. The allegations in the present information have been made, inter alia, in connection with the OP Group, abusing the dominant position by imposing unfair and discriminatory conditions in the sub-license agreements through which Bt. technology is sub-licensed to the seed manufacturing companies in India; charging unfair trait value; limiting scientific development relating to Bt. cotton technology as well as Bt. cotton seeds and denial of market access and leveraging their dominant position in Bt. cotton technology market for expanding their presence in Bt. cotton seeds market. The Informant has further alleged that the OP Group has entered into exclusive supply agreement, refused to deal with Indian seed manufacturers and reserved the right to fix price of seeds in certain circumstances, which according to the Informant is in contravention of provisions of Section 3(4) of the Act.

3. The Commission directed the Director General (DG) to cause an investigation into the matters vide its majority order dated 10th February 2016, passed under Section 26 (1) of the Act in Reference Case No. 2 of 2015 and Case No. 107 of 2015. Subsequently, taking into consideration the substantial similarity in the issues and allegations, the Commission, vide its order dated 18th February 2016, clubbed Case No. 03 of 2016, Case No. 10 of 2016 and Reference Case No.

Case no. 88 of 2016

01/2016 along with Reference Case No. 2 of 2015 and Case No. 107 of 2015. Further, vide its order dated 09th June, 2016, the Commission clubbed three other cases namely Case No. 37 of 2016, Case No.38 of 2016 and Case No.39 of 2016 with Reference Case No. 2 of 2015 and Case No.107 of 2015. Subsequently, vide order dated 21st September, 2016, the Commission clubbed Case No. 36 of 2016 with the earlier cases. All these cases are presently pending before the DG for investigation.

4. The Commission notes that most of the issues and allegations raised in the instant case are also substantially similar to the aforesaid cases. However, in the instant case, the Informant has also submitted that OPs have been claiming that the Bollgard II technology is patented in India and it has been sub-licensed to various Indian seed companies. However, as per the Patents Act, 1970 (hereinafter, the “Patents Act”), patent rights do not exist in genetically modified plants and seeds as the Patents Act does not allow patenting of plants, plant varieties and seeds. Therefore, the appropriate statute for claiming benefit sharing by a person (claimant), in case a new variety has been developed using genetic material belonging to such claimant is the Protection of Plant Varieties and Farmers' Right Act, 2001 (hereinafter, the “PPVFR Act”) only. The Informant has alleged that OPs never licensed this technology i.e. the gene synthesis or process of insertion of the gene into the plant to the domestic seed companies.

5. In this regard, the Commission notes that under the provisions of PPVFR Act, it is the Protection of Plant Varieties and Farmers' Rights Authority established under PPVFR Act which determines the amount of the benefit sharing, if any, for which the claimant is entitled. For this purpose, the said Authority is required to take into consideration the extent and nature of the use of genetic material of the claimant in the development of the variety relating to which the benefit sharing has been claimed and the commercial utility and demand in the market of the variety relating to which the benefit sharing has been claimed. On the other hand under Patents Act, the patentee decides the royalty for licensing his technology. However, for examining the present matter, it is not required to determine this particular aspect as to whether OPs have patent over Bt. Technology or they are covered under PPVFR Act at this stage.

Case no. 88 of 2016

6. The Commission observes that the direction to the DG in Reference Case No. 2 of 2015 and Case No. 107 of 2015 to cause investigation into the matter are broad enough to cover the aforesaid issues brought out by the Informant in the instant matter. Considering the substantial similarity of the core allegations in the instant information and scope of directions given in the earlier cases referred, in exercise of the powers conferred under proviso to Section 26(1) of the Act read with Regulation 27 of the Competition Commission of India (General) Regulations, 2009, the Commission decides to club the present case with Reference Case No. 2 of 2015 and Case No. 107 of 2015. The DG shall investigate the instant case along with the above mentioned cases.

7. The Secretary is directed to communicate this order to the DG along with the copy of the information, accordingly.

Sd/- (Devender Kumar Sikri) Chairperson

Sd/- (S. L. Bunker) Member Sd/- (Sudhir Mital) Member

Sd/- (Augustine Peter) Member

Sd/- (U. C. Nahta) Member

Sd/- (Justice G. P. Mittal) Member New Delhi Dated: 14/03/2017

Case no. 88 of 2016