A claim on basmati

Published : Mar 07, 1998 00:00 IST

A U.S. company has obtained the patent on basmati rice, and a host of other patents that infringe seriously on India's national interests could be in prospect.

THE strictures passed by the World Trade Organisation (WTO) against India for its failure to fall in line with the WTO's new patent standards were worrying enough. Now the wake-up call has come: a United States company has secured the patent on basmati rice.

What Ricetec Inc. has done is an eloquent example of the opportunities the current climate of intellectual property protection affords for a savvy legal operator. It had earlier secured trademark protection for the names "Kasmati" and "Texmati", which it uses to sell "basmati-type aromatic rice" in the world market. The patent obtained on basmati makes this artifice unnecessary.

The company will now be able to utilise the "basmati" label for its sales within the U.S., and its exports. This may only be the most basic of the rights conferred on the company by the patent. Ricetec has, in court proceedings that are under way in the United Kingdom, claimed that its patent covers the rice lines themselves, the grains of these lines and the breeding methods. These are sweeping powers which could, at some stage, extend to the right to restrict others from producing analogous lines.

An ominous precedent was established in U.S. case law as recently as 1994, when a California court ruled that a patent is infringed by a plant which has similar attributes to the variety in question.

The Indian Government has moved fast to check the damage. A group comprising representatives from the Ministries of Industry, Commerce, External Affairs, Science and Technology and Agriculture, is examining the "contents and implications" of the patent granted on basmati. The options being considered include approaching the U.S. Patents Office with a request that the grant of patent be reviewed.

An immediate precedent exists in the revocation of the patent that was granted on turmeric for its wound-healing properties (Frontline, October 3, 1997). India had at that time taken recourse to clauses in the U.S. law that insist on an element of novelty in patent claims. That effort succeeded; but it is not clear whether another one would.

According to Vandana Shiva, Director, Research Foundation for Science, Technology and Ecology, U.S. law provides ample scope for granting irrational patents. Exemption from patenting is allowed where the products and processes concerned embody "prior art" or traditional knowledge. The definition of "prior art" is, however, narrow and exclusive. Vandana Shiva said: "Prior foreign activity precludes a U.S. patent only when the foreign activity is fixed in a tangible, accessible form such as a published document or a patent."

Rice growers obviously lack any such documentation of their traditional skills. A more serious disadvantage is that they enjoy no protection under the Indian legal framework. Although a plant varieties act was drafted and circulated for public comment as early as 1992, a definitive conclusion is still to be reached.

However, even if an Indian legislation on plant varieties protection were in place, it is not clear whether it would enjoy precedence over U.S. patent law in an international context. Activists have therefore urged the Indian Government to take the matter to the WTO for an authoritative ruling.

Suman Sahai, convener, Gene Campaign, said that the basmati patent infringes a clause in the WTO treaty on intellectual property, which puts "geographically indicated" products beyond the scope of patenting. Vandana Shiva is of the opinion that the Indian challenge should embrace the legality of the U.S. patenting process itself, in particular its intrusive provisions, which endanger traditional skills and legitimate productive activity in other countries.

Eminent agricultural scientist M.S. Swaminathan pointed to certain specific areas of legislation that are indicated by the basmati patent. A "geographical appellation act" would safeguard area-specific products like basmati grain from encroachment by foreign enterprises, in much the same way that the term "Champagne" is reserved for the product of a particular region in France. Other areas where immediate legislative initiatives are called for include biodiversity protection, farmers' rights on plant varieties, and patents.

Vandana Shiva said that the WTO clause which calls for a sui generis form of intellectual property protection for plant varieties could be interpreted in terms of a comprehensive charter of farmers' rights. "With a strong farmers' rights regime," she said, "corporations like Ricetec would be forced to pay India royalties for commercial use of our germplasm and our cultural and intellectual heritage."

Meanwhile, the Consultative Group on International Agricultural Research (CGIAR) has called for a moratorium on the granting of intellectual property rights on designated plant germplasm held in its research centres around the world. The CGIAR, in concert with the Food and Agriculture Organisation (FAO), is seeking to put the brakes on the growing instances of intellectual property rights abuse in plant varieties research.

The new spirit of vigilance produced dramatic results recently when seed development agencies in Australia were compelled to abandon their efforts to obtain plant breeders' rights on two varieties of chickpea. Under scrutiny, the Australian agencies admitted that the plant varieties had been obtained from the International Crop Research Institute for the Semi-Arid Tropics (ICRISAT) at Patancheru near Hyderabad, under an agreement which specifically forbade their commercialisation.

According to Pat Roy Mooney, Executive Director of the Canada-based advocacy group, Rural Advancement Foundation International (RAFI), this may only be the beginning. "We have four confirmed cases where germplasm protected by the FAO-CGIAR treaty are subject to Australian PBR claims," he said, "and there are six more cases where the treaty may apply." Another RAFI official said that the range and extent of such abuse in Australia was "shocking".

The Indian Government's own record in anticipating potential sources of trouble has been undistinguished. Unlike the Indian analogue, U.S. law does not entail a prolonged process of public scrutiny prior to the grant of patents. This means that a host of patents that infringe seriously on national interests could be in prospect, with the Indian authorities being compelled in each case to seek post facto remedies from the U.S. legal system.

An alternative approach would be to enact purposive legislation in the broad areas indicated - biodiversity, farmers' rights and patents. However, political uncertainty makes this an uncertain recourse.

A high-powered group to suggest an appropriate modification of national patents legislation was constituted under the eminent chemical scientist C.N.R. Rao. It has since been virtually disbanded on account of serious internal schisms. With consensus and clarity proving elusive, the fire-fighting approach may well become the rule with the Indian Government.

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