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Grains of victory in the Basmati patent battle

P K Vasudeva

The uproar in Parliament over the outcome of the 'Basmati battle' with the US was a case of too much sound and fury signifying little.

MPs across party lines were upset because they thought India had lost the battle with the United States Patents and Trademarks Office upholding Texas-based rice breeder Rice Tec Inc's controversial patent on three 'superior' strains of Basmati rise.

The government was accused of allowing Rice Tec to lay claim to developing 'novel' rice lines producing grains with characteristics 'superior' to those of good quality Basmati rice.

This, they said, would adversely affect the country's commercial interests.

The apprehensions have arisen because the USPTO ruling says Rice Tec's rice is qualitatively better than Basmati, even though it has to drop the brand name Basmati for the patent title for which the Indian government had raised objections.

What this means is that Rice Tec can sell its rice under other brand names like Texmati, Vexmati, and so on and state that its rice is superior to Basmati on the packages.

The real facts of the case are different.

India has actually won and not lost the Basmati patent battle.

In its original patent on 'Basmati rice lines and grains' - granted by the USPTO on September 2, 1997 - Rice Tec had made as many as 20 claims.

India successfully contested the patent for Basmati rice acquired by Rice Tec Inc, which had been challenged by the Agriculture and Processed Food Products Export Development Authority.

On April 2000, Apeda contested three out of the 20 claims. These three claims were seen as particularly sensitive as they pertained to the invention of rice grains possessing traits described as 'novel'.

As a result, Rice Tec withdrew four claims out of 20 patents of uniqueness for its Basmati rice at the USPTO.

The 'novel' characteristics mentioned in the three claims (nos 15, 16 and 17) included grains having "a starch index of about 27 to about 35, a 2-acetyle-1-pyroline content of about 150 ppb (part per billion) to about 2,000 ppb, a length of 8.0 mm, a width of about 1.6 mm to about 1.9 mm and a length-to-width ratio of about 3.5 to about 4.5, a lengthwise increase of 75 to 150 per cent when cooked and a chalk index of less than about 20".

Apeda, however, argued that the specific grain traits listed were already found in over 90 per cent of the Basmati germplasm existing in India and Pakistan much before the patent was filed.

Extensive documentation was submitted to establish that the various Basmati varieties cultivated over the centuries in the subcontinent contained all the 'novel' grain attributes mentioned in the patent.

Based on these arguments, Rice Tec, in September 2000, withdrew the three claims contested by India, besides also unilaterally forgoing another claim (no 4), which was again largely grain-related.

Apeda contended that the Basmati battle was more than half-won by the withdrawal of four grain-related claims by Rice Tec.

If the four claims had not been withdrawn, Rice Tec would have obtained a monopoly in the world market over the marketing of the rice grains possessing the so-called 'novel' traits in the US.

Theoretically, this would have affected India's exports of Basmati rice to the US as well as to other countries since commercial sale of grains with similar attributes would have infringed Rice Tec's patent.

Unlike the four withdrawn 'grain-specific' claims, the remaining 16 claims were plant or lines-specific'. That is, they had to do with Rice Tec's claims that its 'novel rice lines' could produce grains having characteristics 'similar to those of good quality Basmati rice'.

Further, these plants possessed the high-yielding, disease-resistance, and photoperiod-intensive trait found in modern semi-dwarf rice varieties. The patent also claimed that the 'novel' lines could be cultivated in 'North, Central or South America, or the Caribbean Islands'.

In other words, while the withdrawal of the grain-specific claims ensured that Rice Tec would not be able to block the country's Basmati rice export to US, it could, however, produce 'similar or superior grains' outside India, which would end India's subcontinental monopoly in the trade.

If Basmati-like or superior grains could be grown in the northern hemisphere, Basmati would no longer be considered an exotic product, unique to the specific climatic and soil conditions of the Himalayan foot-hills.

In May 2001, however, Rice Tec withdrew 11 other claims (nos 1, 2, 3, 5, 6, 7, 10, 14, 18, 19 and 20) meaning that, as of now, only five (nos 8, 9, 11, 12, and 13) out of the 20 claims remain.

These claims essentially relate to the three 'novel rice lines' - Bas867, RT1117, and RT1121 - that are capable of producing grains similar or superior to Basmati rice.

However, these are relatively harmless claims pertaining to Rice Tec's specific plant variety breeding efforts and not open-ended claims per se.

In fact, the most significant victory for the country has been that the USPTO Patent Examiner has officially changed the title of the Rice Tec's patent from the original 'Basmati lines and grains' to 'Rice lines Bas867, RT1117, and RT1121'.

What the government needs to do is to go a step further and register Basmati as a Geographical Appellation indigenous to the subcontinent under the Geographical Indication of Goods (Registration and Protection) Act, 1999 with the case of Scotch whisky or champagne as a precedent.

This would guarantee that companies such as Rice Tec are not allowed to market the rice produced from their so-called 'novel lines' as 'Basmati' even if the grains possess all the characteristics attributable to Indian Basmati varieties.

This has already been done in the case of the Certification Trademark Scheme for Darjeeling tea for its protection as a produce of a geographical indication of India.

The scheme will be operationalised during the ensuing 2000-01 plantation season.

The launching of the scheme by the Tea Board has been facilitated by the Geographical Indication of Goods Act, which was notified on December 30, 1999.

These latest three patents to Rice Tec do not mean that India cannot sell traditional Basmati in the international market. "We will continue to export rice to other countries as we were doing earlier," says Anil Swarup, chairman, Apeda.

According to Raman Singh, minister of state for commerce and industry, the grant of the patent has not affected India's exports, in general, and to the US, in particular. In fact, total export of Basmati rice in 2000-2001 was Rs 21.42 billion compared with Rs 17.80 billion in the previous year. Similarly, export to the US rose from Rs 707 million in 1999-2000 to Rs 1.29 billion in 2000-2001. This marks a six-fold increase in exports of Basmati rice to the US and the figure is likely to increase further.

However, members of the disbanded task force committee on agriculture under the chairmanship of Sharad Joshi feel that Indian farmers will be on the losing side. Had they received the Basmati varieties of patent earlier, the US company would not have received any patent.

The government had introduced the Protection of Plant Varieties and the Farmers' Rights Bill 1999 in December 1999, which is still awaiting clearance from the Rajya Sabha.

The delay means that Indian farmers and plant breeders are still not in a position to register the varieties bred by them.

In contrast, the international community, especially the US, is patenting newer varieties of Basmati as fast as their scientists develop them. How can parliamentarians blame the government for their own inaction?

( The author is chairman, Institute of Development Studies and Training, Chandigarh)

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