Basmati patent

LET US ACCEPT IT, INDIA HAS LOST THE BATTLE

By Devinder Sharma

Notwithstanding the government's denial, the United States Patent and Trademark Office (USPTO's) ruling that upholds the patent granted to the American food company, RiceTec, is in reality a 'back-door' patent on basmati rice.

By patenting 'similar or superior' basmati grains outside India, RiceTec has also succeeded in ending the sub-continents monopoly over the scented rice. Basmati can no longer be considered an exotic product, unique to the specific climate and soil conditions of the Himalayan foothills. And thereby India loses its right to protect basmati rice under 'geographical indications' like the scotch whisky of Scotland, which cannot be produced and marketed anywhere else in the world.

On August 14, the USPTO's examiner John Doll, gave the 'Notice of Intent to Issue Re-examination Certificate'to Rice Tec upholding claims 8,9,11 and amending the claims 12 and13, while striking down the claims 1-7, 10, 14-20. It may be recalled that RiceTec was granted a patent on 'basmati rice lines and grains' in September, 1997 on the basis of 20 claims that it had submitted.

After an uproar in the country, India had filed for re-examination on April 28, 2000. The Indian challenge was limited to only three of the claims - 15,16and 17, which in essence related to the grain quality like elongation in cooking and aroma of basmati grains. Rice Tec had subsequently withdrawn not three but four of its claims (Nos: 4,15,16,17) in September last knowing well that these would not stand before the Indian challenge.

It was at that time that the country's leading patent experts and some members of the civil society had termed RiceTec's decision to withdraw four claims as "partial victory" for India. As a nation, we are quick to pat ourselves on the back at any given opportunity and RiceTec's withdrawal came in handy. In reality, Rice Tec had tried to upstage India by withdrawing not three but four claims (just to ensure that it doesn't look obvious) so that it becomes difficult for India to challenge the remaining claims. If India had at that particular time, asked USPTO to strike down the complete patent, probably we wouldn't have been faced with a piquant situation that the recent ruling has created.

Once again, Indian authorities and some members of the civil society are quick to term the Aug 14 ruling of the USPTO as a 'victory' for the country. And once again, we are missing the wood from the trees thereby leaving the basic flaws in the patent regime intact.

It is true that the USPTO has now dropped the term 'basmati rice lines and grains' from the definition of the patent. The title of the patent now reads: "Bas 867, RT1117 and RT 1121" (these are the names of the basmati lines that Rice Tec has evolved). But let us take a look at the abstract or the explanation provided for the patent. And it is here that the obvious intention of the USPTO to provide a basmati patent through the 'back-door' becomes clearly visible.

The abstract reads: "The invention relates to novel rice lines Bas 867, RT 1117 and RT 1121 and to plants and grains of these lines and to a method of breeding these lines. The invention also relates to the method of cooking and starch properties of rice grains and its use in identifying desirable lines." Further it adds: "the novel rice lines are semi-dwarf in stature, substantially photoperiod insensitive and high yielding, and produce rice grains having characteristics similar or superior to those of good quality basmati rice."

As if this is not enough, the patent abstract says: "the 'starch index' of a rice grain can predict the grains cooking and starch properties, to a method based thereon for identifying grains that can be cooked to the firmness of traditional basmati rice preparations."

In simple words, the USPTO has very cleverly manipulated the patent claim to uphold RiceTec's assertion that the company had produced a basmati rice, with qualities that were equal of better than the traditional basmati varieties being grown in northwestern India and Pakistan.

Also, the company can now sell its product in market as "Bas 867" calling it a superior basmati grain. If the label says that the packet contains 'superior basmati rice', how does it come as a 'victory' for India is something that is questionable? Also, the fact remains that India had only challenged three of the 20 claims of the basmati patents. If USPTO could allow Rice Tec to amend its claims 12 and 13 and then give a ruling, isn't it proper to first give an opportunity to India to contest those claims? India was not asked to explain whether it agreed with the remaining claims on which the patent has been granted? And yet, the patent says that the lines that the Rice Tec has produced are not known in 'prior art' and have unique genetic characteristics' and therefore are patentable.

Let us also look at a related issue. India has been claiming that basmati rice is part of its culture and traditions. It therefore wants to protect the basmati under the geographical indications provision that is at present provided for scotch and wines. India is pressing the WTO to extend this provision to include basmati rice and other products like Kanjipuram sarees, Kolahpuri chappals etc. If basmati is something that needs to be protected under geographical indications, then why is India reluctant to tell the USPTO that it cannot call the RiceTec's patent rice varieties as equal or superior to basmati rice grains and also have the cooking properties of basmati grains?

After all, where else has the USPTO granted a patent on rice variety evolved in America and then termed it as superior to basmati rice and having the same cooking qualities? Let us also remember, the elongation of rice grains after cooking and the aroma is a distinct property of basmati and cannot be made applicable to any other rice variety. Why so in the case of the varieties developed by RiceTec?

The reality is that India is reluctant to blame the USPTO for the mess that it has created by granting a patent to RiceTec, whereas given the facts and the Indian challenge, the patent should have been struck down at the first instance. Moreover, while the issue gets dissolved in the din and fury over whether Indian basmati exports will be hit or not, the basic flaws in the US patenting system are not being challenged. As a result, India's biodiversity and its traditional knowledge continues to be increasingly patented in the United States. At present, nearly 48 per cent of the 4000-odd plant patents granted by the USPTO in the recent past pertain to traditional knowledge from countries like India. If India is reluctant to even take the basmati case to its logical end, how can we expect justice or protection of national interests on the remaining plant-based patents in America?

Devinder Sharma chairs the New Delhi-based Forum for Biotechnology & Food Security. Among his recent works include two books: GATT to WTO: Seeds of Despair and In the Famine Trap. On July 16, 2001, he was awarded the first Chaudhary Charan Singh Award for Excellence in Journalism, for the year 2000, instituted by the Indian Council of Agricultural Research (ICAR), New Delhi. He is a distinguished journalist, a former Development Editor of the Indian Express and now a columnist on food and nutritional security, conservation of biodiversity, intellectual property rights, international trade, poverty and economic disparities.

He may be contacted at: 7 Triveni Apartments, A-6 Paschim Vihar, New Delhi-110 063, India
Tel: 011-525 0494; Mobile: 98 1130 1857
E-mail: dsharma@ndf.vsnl.net.in

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