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LAW: BASMATI PATENT
Whose Rice Is It Anyway?
The battle over Basmati rice has renewed the debate
on what India is doing to protect its intellectual property
By Shuchi Sinha
 What
does it take to grab the rights to a grain that is as ancient as India's
civilisation? Nothing more than what RiceTec, a small Texas-based company
owned by the Prince of a little-known principality called Liechtenstein
in Central Europe, had: three strains of hybrid rice and a thorough knowledge
of how to manipulate US patent laws. RiceTec almost got away with it.
Till the Indian government woke up and decided to fight, for once even
taking Pakistan's support. The result: good news. Last week, the US Patent
and Trademarks Office (USPTO) drastically curtailed the scope of a patent
granted to RiceTec in 1997 so that the company is entirely prevented from
marketing Basmati rice as its "invention" in the US.
RICETEC'S CLAIMS
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# RiceTec files an application in the US patents office
(USPTO) in 1994, claiming a patent for Basmati rice grains.
# After three years of examination, the USPTO grants RiceTec the
patent in September 1997 on all its 20 claims.
# The USPTO re-examines the entire patent; 15 claims are either
rejected or withdrawn. The remaining five claims granted in August
2001. The term "Basmati" excluded from patent title.
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INDIA'S RESPONSE
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# India cannot respond at the time as US laws decree that patent
applications are confidential until a decision is taken on validity.
# India sets up a committee to counter the patent. Presents case
in April 2000 against those claims which affect India.
# India succeeds in blocking RiceTec's claims. But it needs to
implement geographical indicators as a basis for protection of its
intellectual property.
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Yet given the complexity of the issue, much steam
was inevitably raised in Parliament over whether India had actually won
the battle. Many opposition members expressed fears that "biopiracy"
had resulted in India losing its right to export Basmati to the US. The
truth is: only five of RiceTec's original 20 claims have survived the
Indian challenge. The patent granted neither prevents Indian Basmati from
being exported to the US nor puts it at a disadvantage in the market-it
simply gives RiceTec exclusive rights to three hybrid varieties, Bas 867,
RT 1117 and RT 1121. The company created these strains by crossing a Pakistani
Basmati with an American dwarf variety. Importantly, none of the claims
granted by the patent pertains to Basmati rice as a generic category.
Also, the RiceTec application was for a patent and not for "Basmati"
as a trademark. So there is no question of RiceTec getting exclusive rights
to use the term "Basmati".
While India has won arguably a major battle
it is far from winning the patent war that has seen American companies
grab patents for a variety of Indian grain and herbs. India's Basmati
exports are not large (about Rs 2,000 crore) but as part of our intellectual
property it has billion dollar implications for the future as many other
traditional Indian products could be added to the list of multinational
patents.
Much of the problem, according to lawyers dealing
with Intellectual Property Rights (IPR) issues, is that the US is a patent-friendly
regime. Under its laws, a patent cannot be challenged until after it has
been granted-unlike India where notice is given inviting challenges to
the patent before it is granted. The USPTO examines the claim and if satisfied,
grants it. The patent document is confidential till this point. It is
then made public and can be challenged by asking for a re-examination.
Again, the system encourages the patent applicant: there is no "trial"
in a courtroom. All that the challenger can do is submit documents to
prove that the product or the technique in question is not a newly invented
one but something that has been in the "public domain" prior
to the patentee's supposed invention of it.
In the case of Basmati, RiceTec submitted its
patent claim way back in 1994. But it remained a confidential document
till September 1997 when the USPTO decided RiceTec had a valid claim.
Only then could the Indian government file its case. Patent attorney D.C.
Gabriel of Kumaran, Sagar and Associates, the Indian government' s legal
counsel, says of the US: "It's usually hostile territory for anyone
who challenges a patent." A challenger gets only one opportunity
to submit documents questioning the patent. There's no court-room trial
and no appeal for the challenger. The patentee, however, can appeal if
the patent is denied and is also given the benefit of the doubt if the
case against the patent is not watertight.
In 1997 after RiceTec got the patent for Basmati, the Indian government
typically formed a high-level committee of scientists, academics and lawyers.
It took three years to put together a defence and the government went
on appeal on April 28, 2000. The Indian team homed in on the crucial three
of RiceTec's 20 claims (11 relating to the plant, five to the grain, three
to breeding methods and one to the seed). These were the claims numbered15
to 17 which had been so cleverly worded that the characteristics of the
rice grain mentioned for patenting could easily cover 90 per cent of all
Basmati grown anywhere in the world. India's challenge showed quick results:
RiceTec withdrew these claims promptly, also withdrawing claim 4, relating
to chalkiness of the rice grains. Meanwhile, with India's action, the
process of re-examination began and fortunately for India, the patents
officer Amy Nelson of the USPTO set about looking at each one of RiceTec's
claims.
The close scrutiny shook RiceTec. When Nelson
wrote to the Texan company and asked for explanations, it withdrew an
additional 11 claims, leaving it with only five core claims in the patent.
These give it exclusive rights to the three strains. Raghunath Mashelkar,
director, Council for Scientific and Industrial Research, clarifies that
these five claims are similar to a claim that could be made by any plant
biologist who introduces a new hybrid variety and in no way concerns the
original Basmati rice of the Indian subcontinent. Importantly, RiceTec
has also been ordered to change the title of its patent from "Basmati
Rice Lines and Grains" to "Rice Lines Bas 867, RT 1121 and RT
1117"-a pathbreaking verdict. Says Mashelkar: "I'm particularly
proud that India managed to raise fundamental issues about patenting in
the USPTO-it is the only Third World country to have won such major battles
in the US."
Yet the war is far from over. It took several
years for the Indian Parliament to pass the critical Geographical Indication
of Goods Act, which specifies that only companies that produce goods traditionally
made in certain regions can claim marketing rights to it. For instance,
just as champagne can only be from the Champagne district of France, things
like Basmati rice, Darjeeling tea and Kanjeevaram saris should logically
be the signature products of the regions where they have traditionally
been produced. While common law countries like UK, Saudi Arabia and European
nations already have a rule which allows rice only from India and Pakistan
to be labelled "Basmati", others which follow statutory law
may soon recognise traditional Indian products as Indian monopolies under
the trips (Trade Related Intellectual Property Rights) Agreement. The
Indian government is already fighting a legal battle on this front in
26 countries. It's a long haul but it could be worth the steam.
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