By Surabhi Dhole & Suvigya Vidyarthi, University of Pune, DESFNLC
Editor’s Note: The essay starts off by explaining the meaning and purpose of intellectual property. It mentions how certain intellectual property cases are related to turmeric. The essay emphasizes the importance of The Geographical Indications of Goods (Registration and Protection) Act, 1999; in light of the same it talks about a landmark case based on ‘basmati rice’ patented by the USA. It talks about the relation of basmati rice to India, Pakistan and USA in terms of import, export and patenting. Certain Indian NGO’s objected against the patent granted by USPTO and filed petitions in the USA. They demanded an amendment of US rice standards to specify that the term ‘Basmati’ can be used only for the rice produced/ grown in the territories of India and Pakistan.
The questions under consideration were:
1. Whether or not is Rice Tec Inc. guilty of bio-piracy
2. Whether or not does the decision of the USPTO of granting patent for the valued Basmati rice violate TRIPS
3. Whether or not is the rice ‘invented’ by Rice Tec Inc. a novelty
4. Whether the term ‘Basmati’ is a generic term for the aromatic rice, or is it a term used for rice used in the territories of India and Pakistan only.
Further, detailed arguments used by the attorneys and substantiation on the Indian and US Legal system have been made in this context. It talks about the battle between developed and developing countries and how the developing country taking over the developed one has become a morality tale everywhere.”
1. THE PHYLOGENY OF INTELLECTUAL PROPERTY
Intellectual Property epitomizes the idea that its subject is a matter of mind and intellect. It is the corner stone of the foundation of knowledge based economy and is increasingly gaining importance and competitiveness in various fields of learning, be it Patents (1970); Trademarks (1999); Designs (2000); Geographical Indication (1999); Biodiversity (2002) or Plant variety protection (2001).
Due to the lacunae in these laws formulated to protect the intellectual property rights in India (as they are still raw), there have been numerous cases relating to patents, bio-piracy, geographical indications, traditional knowledge, etc. throughout the world which affect India. Some of the famous ones are related to Turmeric (curcuma long linn), Neem (Azadirachta indica A. Juss.), Basmati (oryza sativa linn), Banyan tree, Jaamun, Amla (Indian Gooseberry), etc.
The TRIPS (Trade Related Intellectual Property Rights) clause defines geographical indication as “a good originating in the territory of a member, or a region or locality in that territory, where a given quality, repetition, or other characteristic of a good is essentially attributable to its geographical origin.”
In the Indian legal system, geographical indication and laws relating to it have been stated under The Geographical Indications of Goods (Registration and Protection) Act, 1999. One such landmark case relating to the same is that of “Basmati Rice” being patented by the United States of America (U.S.A).
2. AROMATIC BASMATI- THE GERMANE REALISMS
Basmati rice means “queen of fragrance or the perfumed one” and is also acclaimed the “crown jewel” of South Asian rice. It is treasured for its intense fragrance and taste, famous in national as well as international markets. This kind of rice is grown in the Himalayan hills, Punjab, Haryana, Uttar Pradesh and parts of Pakistan, since times immemorial. Basmati is the finest quality of rice, long-grained, and the costliest in the world. APEDA (Agricultural and Processed food products Export Development Authority) states India to be the second largest exporter of rice after China accounting to 80 million tonnes of rice annually. U.S.A is a major importer of basmati rice totaling 45,000 tonnes, accounting for 10 percent of the total exports of India. Thus, the year 1997 marked the most important case in the history of geographical indication (bio-piracy).
Royal Rice Tec Inc. was a tiny American rice company with yearly income of around U.S. $10 million and working staff totaling to 120. They constituted a small fraction of the world’s (basmati like) rice production, with names ‘Kasmati’ and ‘Texmati’. They had been trying to enter the world rice market since long, but in vain. On September 2, 1997, Rice Tec Inc. was issued a patent of the same by USPTO (United States Patent and Trademark Office) bearing patent number 5663484, on basmati rice lines and grains. This gave them the ultimate rights to call the odoriferous rice Basmati within U.S, and label it the same for export internationally. The so-called invention of Basmati rice by Rice Tec Inc. relates to novel rice lines, novel means for determining, for cooking and also to starch properties of rice grains and its use in identifying desirable rice lines.
Since times immemorial, majority of farmers from India and Pakistan have been sustaining majorly on cultivation of rice, as these countries have constantly been among the leading rice producers of the world. Cultivation of rice is not merely a life sustainer but also a part of socio-culture in India and Pakistan. The quantity of Basmati rice produced in India and Pakistan specifically and the quantity exported to countries like Saudi Arabia, UK etc. is Brobdingnagian. Basmati is a ‘brand name’ of the rice grown in India and Pakistan particularly.
In the words of Dr.Vandana Shiva, director of a Delhi based research foundation involved in monitoring issues related to patents and bio-piracy:
“the theft involved in the basmati rice patent is, therefore, a theft of collective intellectual and biodiversity heritage on Indian farmers, a theft from Indian traders and exporters whose markets are being stolen by Rice Tec Inc and also a deception of consumers since Rice Tec is using a stolen name of BASMATI for rice which are derived from Indian rice but not grown in India, and hence not the same quality.”
These plants have a semi-dwarf stature, are substantially photoperiod insensitive and are high yielding which makes their characteristics similar to good quality Indian basmati.
Two Indian NGO’s, namely, Centre for Food Safety, an international NGO that campaigns against bio-piracy, and the Research Foundation for Science, Technology and Ecology, an Indian environmental NGO, objected against the patent granted by USPTO and filed petitions in the USA. Centre for Scientific and Industrial Research also objected to the same. They demanded an amendment of US rice standards to specify that the term ‘Basmati’ can be used only for the rice produced/ grown in the territories of India and Pakistan, in particular.
Thus, the various issues which come forth in this case, which hope to be resolved by the purview of the patent and geographical indication laws are:
a. Whether or not is Rice Tec Inc. guilty of bio-piracy?
b. Whether or not does the decision of the USPTO of granting patent for the valued Basmati rice violate TRIPS?
c. Whether or not is the rice ‘invented’ by Rice Tec Inc. a novelty?
d. Whether the term ‘Basmati’ is a generic term for the aromatic rice, or is it especially the name given to the long aromatic rice produced/ grown in the territories of India and Pakistan specifically?
3. BASMATI IN A CANVASS
- Elaborating the lines stated above, Rice Tech Inc. was “awarded” the rice patent –
-Firstly, the invention relates to novel rice lines, its semi-dwarf stature, substantial photoperiod insensitivity and high yielding grain, and production of rice grains having characteristics similar or superior to those of proper quality,
- Secondly, breeding of novel line grains from novel rice lines,
- Thirdly, detecting the starch index(SI) of a rice grain can predict the grains cooking and its starch properties, based on the method for identifying grains that can be cooked to the firmness of traditional basmati rice preparations, and to the use of this method in selecting suitable sergeants for rice breeding programs.
The underlying objective was to develop a new rice line with plants that produce rice grains having features similar to the original good quality basmati rice produced by India and Pakistan.
The dispute over the Rice Tec Inc. patent gained limelight and was challenged by the government of India on the lines that:
Rice has been a basic source of income for numerous farmers, as India is an agricultural country. Basmati is the highest exported rice in various countries along with U.S. Moreover U.S.A is one of the largest importers of basmati rice. Patenting of ‘basmati’ like rice, bearing the same name would not only cause heavy loss for India and Pakistan in U.S. but also, the world at large.
The patent was challenged on the ground that the plant varieties and grains already existed in India and Pakistan and is the staple food of these countries. Also that the rice imported cannot be grown in the U.S. because of varied climatic conditions. The legal theory states that the patent was not novel at all as the rice has been in existence for very long thus it could not be termed to be an invention, thus in the very first place the patent should not have been granted by the U.S. authorities.
The Indian attorneys put forth that using ‘Basmati’ as a name in conjunction with the patent and in the marketing of the rice is not lawful. Such usage of the terms creates disarray regarding the geographical origin and it seizes the goodwill and market standing of the rice produced/ grown and sold in and from India. Thus, as a result of the re-examination form filed by the Government of India, Rice Tec Inc. agreed to withdraw its claims in parts. On 29th January, 2002, a re-examination certificate was issued by the USPTO cancelling claims 1-7, 10, 14-20 out of its 24 claims.
A major drawback in the US legal system is that they keep the patent application a secret and the patents are granted without the other parties filing their oppositions to it, if any. Third parties are allowed to file the petition against the patent only after the patent has been granted, as in the case of BASMATI RICE. Whereas in India and Europe, they first examine a patent application and then publish it openly so that the third parties can file an opposition to the patent, if any. And then, after all the oppositions have been verified and sorted out, the patent is granted. Thus, the kind of legal system followed in India prevents future cases like the ‘Basmati rice’ case from occurring. Therefore, there is a need to review and revise the patent granting process in the US.
India has been urged by numerous activists to take this case to WTO on the grounds of violation of TRIPS. The government of India is specifically worried about the Basmati Patent, due to the early turmeric (curcuma long linn) case, where the U.S. granted a patent to two Indian born scientists on the use of turmeric as a wound healing agent The case worked in favour of India because it was successfully lifted up by CSIR (Council for Scientific and Industrial Research) stating turmeric as a wound healing agent and its healing properties to have been a ‘common knowledge’ in India for centuries. As evidence they presented a clause in the U.S. patent laws that it will accept any information from anywhere in the world regarding ‘common knowledge’. As a result, India was able to render published evidence in case of turmeric. The law firm Sagar and Suri represented India and got the patent on Turmeric revoked successfully. Rice Tec Inc. got a patent for-
- Grains and characteristics identical to basmati
- Grains produced by such plants
- Method of selecting plants
- These plant varieties already exist, hence cannot be patented.
Furthermore, Basmati rice is associated to India and Pakistan as Champagne is to France and Scotch Whiskey is to Scotland. Indians point out that just like US cannot label Wine as Champagne, Basmati should also not be allowed to be copied. If the patent is not revoked in the U.S. (because unlike the turmeric case rice growers lack documentation of their traditional skills and knowledge), the Indians should take the case to WTO for an authoritative ruling for violating TRIPS.
The latest rice yearbook 1997 released in January 1998, stated that ‘almost 75% of U.S. rice exports are Jasmine from Thailand and remaining from India and Pakistan “varieties that cannot be grown in U.S”. This rather interesting piece of information can be used as a major point to backfire the Rice Tec Inc. for patenting Basmati.
Thus, in the wake of the patent problems being confronted by India in the recent epoch, it has dawned upon them to enact laws for the conservation of biodiversity and for controlling piracy. It is believed that Rice Tec Inc. opted for a patent on Basmati because of the docile, destitute Indian laws and also due to the government’s philosophical attitude that natural products should not be patented. India needs to strategize its laws in the long run to protect its bio-resources from future bio-piracy and/ or theft.
Drawing strength from the words of M.S. Swaminathan (one of the worlds’ leading rice experts), stating basmati rice patent as ‘unreasonable’, we summarize the whole issue of BASMATI as a gross global violation on grounds of morality. For generations and centuries farmers have selected and spawned the aromatic rice. It is unacceptable and indecorous of the US based company to snatch away a country’s historic pride, that too so brazenly. This case faced a lot of outrage over the accusations of biopiracy which resulted in strained relations between Rice Tec owner Prince Hans-Adam of Liechtenstein (USA) and INDIA.
India had periled the United States to take the matter to the WTO as an infringement of the TRIPS agreement, which could have resulted in major embarrassment for the US. Hence voluntarily and due to few decisions take by the US patent office, Rice Tec had no choice but to lose most of the claims and most importantly the right to call the rice “Basmati”. In the year 2002, the final decision was taken. Rice Tec dropped down 15 claims, resulting in clearing the path of Indian Basmati rice exports to the foreign countries. The Patent Office ordered the patent name to be changed to ‘Rice lines 867’. Now there website has no reference about the patent product and the rice is rebranded to Basmati based products – Texmati, Jasmati and Kasmati.
The Indian Government, on the other hand, is reinforcing its strength on Basmati rice and its export empire. It also introduced IP and Geographical Indication legislation and the importance of agricultural products. This battle between the developed and developing country and the developing country taking over the former has become a morality tale world over. It is one of the major achievements by the Indian legislation by standing victorious over the conflict between two major continents. It was high time the global community came to decipher the chaff from the grain and reprimand the copycats for posing as originals, and India succeeded in saving the lives of thousands of farmers from major economic losses.
Formatted on 13th March 2019.