A CASE ANALYSIS ON WHOSE BASMATI IT IS?

What is the case all about

In September 1997, an American company RiceTec Inc, a small food technology

company based in Taxes, was granted a patent by the US patent office to call the aromatic
rice variety developed in USA 'Basmati'. RiceTec Inc, had been trying to enter the
international Basmati market with brands like 'Kasmati' and 'Texmati' described as
Basmati-type rice with minimal success. Ultimately, the company claimed to have
developed a new strain of aromatic rice by interbreeding basmati with another variety.
They sought to call the allegedly new variety as Texmati or American Basmati.
RiceTec Inc, was issued the Patent number 5663484 on Basmati rice lines and
grains on September 2, 1997.
This was objected to by two Indian nongovernmental organizations (NGOs) Centre
for Food Safety, an international NGO that campaigns against biopiracy, and the
Research Foundation for Science, Technology and Ecology, an Indian environmental
NGO who filed legal petitions in the United States. The Centre for Scientific and
Industrial Research also objected to it.
India challenged arguing that Basmati is unique aromatic rice grown in northern India and
not a name Rice tec could claim and only inventions can be patented. Concequently US
patent office accepted accepted Indias basic position and the company had to drop 15 out
of 20 claims that it had made. And for remaining claims, Rice tec managed to evolve
three new varieties of rice for which it got patent from United states Patent and
Trademark office (USPTO).
Rice Tec was not handed over Basmati Brand but provided a patent for superior three
strains of Basmati developed by cross-breeding a Pakistani Basmati with semi-dwarf
American variety.
According to WTO agreement, geographic indication like Basmati can be protected
legally and their misuse can be prevented. And Indian government was late in taking such
actions.
The issues:
Various issues have been raised following the controversy. Some of the major issues are:

Whether the term basmati is a generic one to describe aromatic rice, or does it refer
specifically to the long aromatic rice grown in India and Pakistan?
Whether the strain developed by RiceTec is a novelty?
Whether RiceTec is guilty of biopiracy?
Whether US governments decision to grant a patent for the prized Basmati rice
violates the
International Treaty on Trade Related Intellectual Property Rights (TRIPS)?
Whether the basmati patent should be revoked in the light of protests from India?

The role played by Government of India in preventing the misuse of the

name Basmati.
In an official release, the government of India reacted immediately after learning of
the Basmati patent issued to RiceTec Inc., stating that it would approach the US
patent office and urge them to re-examine the patent to a United States firm to grow
and sell rice under the Basmati brand name in order to protect India's interests,
particularly those of growers and exporters.
Furthermore, a high level inter-ministerial group comprising of representatives of the
ministries and departments of commerce, industry, external affairs, Council for
scientific and industrial research (CSIR), Agriculture, Bio-technology, All India Rice
Exporters Association (AIREA), APEDA, and Indian Council of Agricultural
Research (ICAR) were mobilized to begin an in-depth examination of the case.
The contents and implications of the patent are currently being analyzed in
consultation with patent attorneys and agricultural scientists. The government of India
is particularly concerned about the patenting of Basmati because of an earlier case
where the US granted a patent to two Indian-born scientists on the use of Turmeric as
a wound healing agent. This case worked in favor of India because the patent was
subsequently revoked after scientists of (CSIR) successfully challenged the patenting
on the ground that the healing properties of Turmeric had been 'common knowledge'
in India for centuries. There is a clause in US patent laws that will accept any
information already available in published or written form anywhere in the world as
'common knowledge'. As a result, India was able to furnish published evidence to
 support their case that the healing characteristics of Turmeric is not a new invention
and as such cannot be patented.
According to the Economic Times of India, the law firm of Sagar and Suri who won
the Turmeric patent case and presently representing the government against RiceTec
Inc. in existing cases, said; "RiceTec has got a patent for three things: growing rice
plants with certain characteristics identical to Basmati, the grain produced by such
plants, and the method of selecting the rice plant based on a starch index (SI) test
devised by RiceTec Inc." The lawyers plan to challenge this patent on the basis that
the above mentioned plant varieties and grains already exist and thus cannot be
patented. In addition, they encountered some information from the US National
Agricultural Statistics Service in its latest Rice Year book 1997, released in January
1998, which states that almost 75 percent of US rice imports are the Jasmine rice from
Thailand and most of the remainder are from India and Pakistan, varieties that cannot
be grown in the US" This piece of information is rather interesting and can be used as
a weapon against the RiceTec Basmati patent.
In June 2000 Agriculture and Processed Food Products Development Authority
(APEDA) Under the Ministry Of Commerce filed a re-examination application
contesting 3 claims of the patent. So. Company withdrew its claims on 4 points that
relate to trade of Basmati. INDIA WON THE CASE BASED ON GEOGRAPHICAL
INDICATIONS DURING JUNE 2000!
For years, India largely ignored any claim or legal protection for growers and
marketers of basmati. A bill has been introduced to recognize produce as belonging to
a specific geographical area, but it is still pending before a panel of the Parliament.
Given that basmati is not patented by geographic location even within India, the
country's international patent appeal appears weak.
For over two decades ''basmati'' has been used in the United States to describe long-
grain aromatic rice grown domestically. This usage went unchallenged by India, so
much so that the patent claims were under the plea of ''long usage'' provided for in
trade-related intellectual property rights.
Ricetec claims that India felt posed a threat to Indian basmati exports to the United
States. In hundreds of pages of scientific evidence, India argued that its basmati
varieties already had the characteristics claimed as unique by Ricetec.
Conclusion

RiceTec has been forced to give up the title of its patent, it has been forced to give up 15
of its 20 claims, including those with the most far-reaching implications related to
biopiracy. The surviving claims now need to be challenged as part of the larger
movement against patents on life and patents on rice. The campaign against patent on rice
is now being launched by the Research Foundation against patents held by Monsanto and
Novartis, including patents on Golden Rice. Geographical Indications as a concept and
as a subject of legislation is relatively new in India and therefore it is required that the
arena is well-researched upon and academically as well as practically delved into so as to
ensure that we are better equipped to address such instanced of violation more promptly
in future.