'India wins the Basmati patent case but the trademark issue remains'

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. Published By: AtMigration Published On: Sep 3, 2001 00:00 IST--- ENDS ---

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'India wins the Basmati patent case but the trademark issue remains'

India wins the Basmati patent case but the trademark issue remains.

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