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Victory On Basmati? By Amit Sen Gupta

THE Basmati patents debate has once again hit the headlines with the recent report that a US company, Ricetec, has been granted a Patent in the US by the US Patent and Trademark office. The US Patent Office’s decision comes after a three year long legal battle. Two years back, the Indian government had vowed to fight the case till the end and ensure that Indian interests are not hampered. In fact the Indian government realised that a patent application had been filed on Basmati a year after the filing in September 1997. It received information regarding the patent only after India objected to the United Kingdom registering Ricetec’s "Texmati" trademark in late 1998. In reply, the US Company said it had received patent for its Basmati line rice in its own country.

RICETEC’S CLAIM

Ricetec had stated in its Patent application that their "invention" was based on its surprising discovery that certain Basmati plant and grain characteristics and aspects of the growing environment for traditional Basmati rice lines are not critical to perceived Basmati product quality by consumers. It had said that the "limited success" in growing Basmati in other parts of the world "supports the belief in consumer, trade and scientific circles that authentic Basmati rice can only be obtained from the northern regions of India and Pakistan due to the unique and complex combination of environment, soil, climate, sowing practices and the genetics of the Basmati varieties." In its patent application Ricetec also acknowledged that "good quality Basmati rice traditionally come from northern India and Pakistan...Indeed in some countries the term can be applied to only the Basmati rice grown in India and Pakistan." However, the company then went on to claim that it had invented certain "novel" Basmati lines and grains "which make possible the production of high quality, higher yielding Basmati rice worldwide."

The Indian government has now claimed that the recent ruling by the US patent office is not really a victory for Ricetec as what has been granted as Patent Rights is a dilution of the original claims made by the company. Apparently, during the course of the appeal filed by India in the US Ricetec agreed to drop 15 of the 20 claims that it had made in the original patent application. The government would also like to draw satisfaction from the fact that the American company will not be able to call its product Basmati -- it is likely to be called something like Texmati (thus indicating that it is Basmati grown in Texas!).

Of Ricetec’s 20 claims before the US Patent Office, three (15 to 17) were considered critical by the Indian side because if these had been upheld Ricetec would have been granted Patents for characteristics that were considered unique to Basmati varieties grown in India and Pakistan. The Indian response to Ricetec’s patent claim took two years to formulate because of the complex issues involved. The response that was finally filed argued that a Patent for Basmati should not be granted, as Ricetec’s variety was different from the Basmati that is grown in India (and Pakistan). The evidence furnished was germplasm from the collection of the Directorate of Rice Research in Hyderabad and declarations by Indian scientists on grain characteristics of Basmati rice grown in India.

THE LEGAL POSITION

In this context, the legal position in the Basmati case needs to be understood. Plant varieties are not allowed Patent protection in most countries (including India), though the US has been a strong proponent for Patent protection of plant varieties. The WTO agreement does not require countries to provide Patent protection to plant varieties—it only requires countries to legislate so that plant varieties are protected in some manner (not necessarily through patents). However, because the application was filed in the US, domestic laws of that country allowed the patent application. Hence, obviously, there is no immediate threat to any extension of the patents granted to India.

However claims that the present ruling is a victory for India and shall not jeopardise Indian exports does not appear to be entirely borne out by facts. Ricetec has been granted what are called "varietal" patents; i.e. three strains developed by the company have been allowed protection. What is more important is that the company can label its strains as "superior Basmati rice". It is difficult to argue that this will not constitute a threat to Indian exports of Basmati rice. As a result of the varietal Patent granted, not only will India lose out on the 45,000-tonne US market, which forms 10 per cent of the total Basmati exports, but also its premium position in vital markets like the European Union, the UK and West Asia.

GEOGRAPHICAL INDICATORS CLAUSE

As many have already argued, India can still pursue the case in WTO by using the Geographical Indicators Clause. Exclusion of geographical indications from patentability means that it is not possible to patent products which are known to originate from a particular geographical region, if the said products have their origin in a different region. Thus wine made in India cannot be called "French Wine". This would, for example, also apply to Scotch Whisky or Darjeeling Tea. Similarly, given the fact that Basmati rice is known to grow only in certain parts of India and Pakistan, it cannot be patented. Hence, granting of patent for Basmati violates the fundamental fact that the long grain aromatic rice grown only in Punjab, Haryana, and Uttar Pradesh and parts of Pakistan is called Basmati. India’s contention could be that while Ricetec can sell rice virtually identical in aroma and taste worldwide, it cannot use the traditional Indian name "Basmati" because it is employed for a very specific variety of rice grown in a specific geographic area. Interestingly, the US National Agricultural Statistics Service in its latest Rice Year Book 1997, released in January 1998, states that "Almost 75 per cent of the US rice imports are the Jasmine rice from Thailand and most of the remainder are from India and Pakistan, varieties that currently cannot be grown in the US."

India can thus legitimately argue that the granting of the Patent is an infringement of the "geographical indications" clause in the TRIPS agreement under WTO. Regarding geographical indications, TRIPS requires all WTO members to provide the means by which the use of any indication which would constitute an act of unfair competition could be prevented. The TRIPS agreement says that member countries would "Provide improved protection for geographical indications of origin". However India is still to pass the "Geographical Indicators" Bill that could provide such protection.

CHALLENGE THE GLOBAL PATENT REGIME

The case also raises broader question regarding the unequal nature of the global patent system. This is borne out by the fact that the combined might of the Indian government and all the consequent resources at its disposal was unable to completely overturn a patent application of a small company, in spite of the Patent application having been flawed to start with. If its Basmati rice today, can Darjeeling Tea be far behind?

The mere act of challenging the Basmati Patent in the US, does not constitute a strong enough action. The Basmati Patent application is not the first, and is by no means going to be the last of such applications that prey upon our traditional knowledge and our resources. Today the world can be broadly divided into the "biodiversity rich" nations of the Third World and the "Patent rich" nations of Europe, North America and Japan. While the former is home to an overwhelming majority of species of living organisms, especially plant varieties, the latter hold over 99 per cent of global Patents. It is thus necessary to question the whole premise on which the Intellectual Protection Regime (IPR) is based. The developed countries are interested in monopolising their hegemony over the resources—both physical and intellectual—of this planet. Hence the drive towards a stringent Patent Regime that can create monopolies for their Transnational Companies.

Some commentators have argued that we should patent our plant varieties, in order to prevent others from doing so. This betrays a shallow understanding of the patents issue. The developing world cannot fight the global patents regime by arguing for a more liberal patents regime. This would be playing into the hands of the US and other developed countries, who are in a position to pledge enormous resources to "mop up" patents at a frenetic pace. Even the WTO agreement does not require us to patent plant varieties. Instead India should argue against the liberalised global patent regime, and particularly against patenting of life forms like plants.

It would be stating the obvious to reiterate that India’s capitulation during the GATT negotiations saw the foisting of an iniquitous Patent regime on all developing countries. The moot questions really is, what options do we have today? Instead of being frozen into a state of inactivity, India needs to play a much more pro-active role. If we accept that WTO is a reality today, unpleasant or otherwise, we need to work out means to increase our space for maneuverability within WTO. For that to happen, India must mobilise opinion among other Third World nations, who anyway constitute a majority within WTO. At the same time we need to review existing laws, not because WTO wants us to do so, but in order to safeguard our own interests. A case in point is the "Geographical Indications Bill" which is pending before a joint select committee of parliament.