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VIEWPOINT: KAUTILYA
Basmati Gets Steaming Againa
India wins the Basmati patent case but the trademark
issue remains
By Jairam Ramesh
Ill-informed MPs,
scare-mongering NGOs and a sensationalist media have raked up the Basmati
rice patent controversy yet again. It is being claimed that the US has
granted a patent for Basmati to American company RiceTec and that this
would hit our exports of this long-grain, high-premium, aromatic rice
variety that is grown by around three lakh farmers in Haryana, western
Uttar Pradesh and Punjab. Unfortunately, facts are at a deep discount.
 To
begin with, the problem is just in the US. There is no dispute in Europe
and West Asia. About 10 per cent of our Basmati rice exports go to the
US. In 2000-1, the total Basmati rice exports were around 0.85 million
tonnes valued at about Rs 2,200 crore. Two specific aspects of the US
patent law are relevant here. First, anything under the sun is patentable
provided there is novelty, inventiveness and industrial application. This
was enunciated in the landmark US Supreme Court decision of 1980 while
allowing the patenting of a genetically engineered bacteria developed
by Dr Ananda Chakraborty of the University of Illinois. Second, under
the US law, it is only after a patent is granted that aggrieved parties
approach the US Patent Office for a "re-examination" that is
based wholly on a written brief.
RiceTec has been selling Basmati rice grown
in the US under the trademark Texmati and Kasmati for almost two decades.
Texmati carries the description "American-style Basmati rice",
while the superior Kasmati is described as "Indian-style Basmati
rice". In December 1995, at the initiative of the then Union commerce
minister P. Chidambaram, a Basmati Development Fund was set up to, among
other things, protect the Basmati trademark. Battles have been won by
the Agricultural Products Export Development Authority (APEDA) and its
lawyers, the Delhi firm of Kumaran and Sagar in countries like the UK,
Greece, Colombia, Brazil and Spain.
RiceTec, which used a number of Indian scientific
publications in its support, was granted a US patent on September 2, 1997.
India submitted a detailed re-examination brief on April 28, 2000. On
September 11, 2000 RiceTec withdrew four key claims from the original
20 that it had made to get the patent and which had been challenged in
the Indian brief. Three of these claims sought to define Basmati in a
way that would have allowed RiceTec to keep out Indian-grown Basmati.
On August 14, 2001, the final decision was handed down changing the title
of the invention from Basmati Rice and Grains to Rice Lines Bas 867, RT
117 and RT 121. This is a victory for India. A patent has been granted
for only these three lines which, incidentally, are derived from Pakistani
Basmati varieties.
We cannot tell the world not to have intellectual
property protection for its research. And research cannot be stopped.
India's famous Pusa Basmati variety, for instance, is derived from a dwarf
gene from a Taiwanese variety introduced into a local variety. The difference
is that we do not patent plant varieties while the US does. It is only
now that we are also thinking about protecting our own research in agriculture.
But legislation is still pending. We are also yet to put in place a system
to scientifically inventorise our genetic wealth and to use our biodiversity
in a sustainable manner.
How do we get RiceTec to stop using the word
Basmati? Since Basmati is used predominantly by NRIs and Indian restaurants
abroad, a mass e-mail boycott campaign could be started. Another more
serious option suggested by Jayashree Watal, one of the world's leading
scholars on intellectual property rights and now at the WTO, is to approach
US courts on the allegedly deceptive use of the name Basmati or similar
sounding trademarks by RiceTec. But our case may have taken a beating
with the May 9, 2001 ruling by the US Federal Trade Commission on a petition
filed by the activist Vandana Shiva, that "there is no specific statutory
or regulatory limitation on references to US-grown rice as Basmati".
The WTO affords protection for what is called
a "geographical indication", that is, a product that is associated
with a region. But at present, only wines and spirits like Champagne and
Burgundy are covered. Basmati may well be a geographical indication but
it is cultivated heavily in Pakistan as well. Thus, joint action is necessary.
And we cannot hope to have the world recognise Basmati as a geographical
indication if we ourselves do not do so quickly. Our national law to protect
products like Basmati and Darjeeling tea was passed in December 1999 but
has yet to come into effect. Moreover, the law and the rules appear very
cumbersome. The immediate option is to pursue a bilateral approach based
on some reciprocity with the Americans to protect our geographical indications
while pursuing the WTO route as well.
(The author is with the Congress party. These
are his personal views.)
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