/REPEATING/DEVELOPMENT-SOUTH ASIA: ‘Basmati’ Patent Win Not Final, say Food Security Experts

By Ranjit Devraj Reprint | | Print |

Ranjit Devraj

NEW DELHI, Oct 9 2000 (IPS) - India and Pakistan could still lose a fight over the ownership of ‘Basmati’ rice to a U.S.-based company, which has been forced to withdraw patent claims on the fragrant rice that has been grown for centuries in the central Indian Himalayan foothills.

Food security experts say celebrations by the Indian government’s Agricultural and Processed Food Products Export Development Authority (APEDA), which filed for revocation of the patents granted in September 1997 to ‘Rice Tec’ by the U.S. Patent Office (USPTO), may be early.

“We have succeeded in forcing Rice Tec to withdraw four out of 20 claims. The claims now withdrawn would have adversely affected India’s commercial interests in future exports of Basmati rice,” said an APEDA statement.

But leading food security activist Devinder Sharma argues that by withdrawing four of its crucial claims, Rice Tec has foiled India’s attempts to strike down the patent.

According to Sharma, Rice Tec withdrew these because it realised its claims pertaining to ‘novel rice grains’ would not hold in the light of the re-examination sought by APEDA with the USPTO.

“Of the 20 claims, only four are specific to the characteristics of the rice grain while the remaining 16 claims are more or less concerned with ‘novel rice lines’, which details breeding techniques, characteristics and properties for cultivation outside the Indian sub-continent,” he says.

APEDA’s strategy was to contest the claims made on novel rice grains on the premise that that the rest of Rice Tec’s claims would then automatically fall flat. But Rice Tec’s lawyers, apparently sensing the strategy, deftly withdrew the clearly untenable claims.

“Instead of celebrating and putting on a brave front in public, APEDA must quickly challenge the withdrawal and force the USPTO to either accept the entire patent application for re-examination or direct Rice Tec to withdraw its patent,” says Sharma.

Rice Tec’s claim on Basmati rice is said to be the most audacious instance of ‘biopiracy’ by Western transnational corporations (TNCs). The Indian government has successfully contested in the United States, the grant of a patent on the commercial use of the traditional medicinal properties of turmeric.

Another well-known example of biopiracy is the patent on the herbicidal properties of the ‘neem’ tree.

The Indian government was successful in the turmeric patent case because it could produce documented evidence, from ancient Indian texts, showing that turmeric’s medicinal use was well known in the country for centuries.

“The Basmati case is tricky techno-legal business and once we take up a position we cannot easily withdraw it,” explains Raghunath Mashelkar, director general of the Council of Scientific and Industrial Research (CSIR).

But leading Indian anti-biopiracy campaigner, Vandana Shiva, who successfully challenged patents on neem granted to ‘W.R. Grace’ by the Munich-based European Patent office, accuses the government of “lethargy, indifference and collusion” with Western interests.

According to Shiva, the Indian government is actually helping biopirates. She has challenged in India’s Supreme Court, a biodiveristy law enacted by Parliament last year, which allows TNCs exclusive marketing rights (EMRs) for traditional medicines that are used by the bulk of the one billion Indians.

“The implication of the (biodiversity) bill is that the global seed industry can freely take seeds, claim patents or breeder’s rights by tinkering with them and not be regulated,” she explains.

In contesting the neem patents, Shiva too cited ancient texts to show that neem products have been used in India for centuries for medicinal and agricultural purposes. Earlier, the Indian government lost its challenge to the neem patents in the United States.

Pakistani anti-biopiracy campaigner, Uzma Jamil describes the Basmati and turmeric patents as “manifestations of the increasing infringement of the economic and national sovereignty of the South by the North.”

According to Jamil, who is with the ‘South Asia Commission on Environmental, Economic and Social Policy, Rice Tec’s claims are clear violations of the Convention on Biodiveristy (CBD), which recognises the sovereignty of a state over its natural genetic resources.

“The manner in which Rice Tec established its patent, demonstrates that it has ignored the contributions of local communities in the production of Basmati and that it does not intend to share the benefits,” says Jamil.

Rice Tec’s Basmati patent also violates provisions of the Trade Related Intellectual Property Rights (TRIPs) agreement concerning ‘geographical indications’, say anti-biopiracy activists.

Under this, for example, the term ‘champagne’ can only be used to describe wine that has been produced in the Champagne region of France and ‘Scotch’ whisky can only be applied to the spirit produced in the Scottish highlands.

Basmati rice is also governed by this rule since it is has a “closely linked, exclusive relationship with its place of origin on the Indian sub-continent,” says Sharma.

But, India has failed to claim TRIPs protection for Basmati rice, Darjeeling tea and other products, he says.