TRADE-RIGHTS:India Still Sifting Grain From 'Basmati' Chaff
By Ranjit Devraj

NEW DELHI, Aug 22 (IPS) - A U.S. government ruling this month, upholding  the patentability of India's 'basmati' rice, proves how companies bent on biopiracy can run circles around countries trying to protect biodiversity resources and traditional knowledge, experts here say.

On Aug. 14, the U.S. Patent and Trademark Office (USPTO) order stops short of allowing the Texas-based firm RiceTec the right to use the word  'basmati' as a brand name, but grants patents to three hybrid strains it developed.

This ruling, its details and its ramifications, sowed the seeds of confusion in the Indian Parliament, which adjourned in bedlam Tuesday over the issue.

In an interview with the 'Times of India' correspondent in Washington published Wednesday, USPTO examiner John Doll said RiceTec's claims on the generic strains of 'basmati' were rejected and the company, in fact, cancelled its claims in response to the USPTO rejection.

But New Delhi-based food security expert Devinder Sharma says that in reality, Doll's order amounts to granting a patent on 'basmati' rice through the back door.

Earlier reports referred generally to a defeat for India in the battle against the patenting of 'basmati' (fragant earth) rice.  With more details now available, the nub of the issue lies in the abstract of Doll's order: ''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.''

Explaining the new hybrids it says RiceTec developed, 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.''

The patent abstract also holds that ''the 'starch index' of a rice grain can predict the grain's cooking and starch properties, to a method based thereon for identifying grains that can be cooked to the firmness of traditional 'basmati' rice preparations''.

Said Sharma: ''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 or better than the traditional 'basmati' varieties being grown in north-western India and Pakistan.''

Also, the company can now sell its product as ''Bas 867'' and label it a ''superior basmati rice'' on its packets and get away with blatant biopiracy, Sharma said.The biggest complaint of Sharma and other experts such as Suman Sahai of the well-known group Gene Campaign is that the Indian government never demanded that the USPTO strike down the whole patent -- but challenged just three of 20 claims made by RiceTec.

These claims, numbered 15,16 and 17, related to grain quality such as elongation in cooking and the unique aroma of genuine 'basmati', which Rice Tec could not have supported and in fact withdrew last September. For good measure, it also withdrew claim 4.

But Ramesh Mashelkar, director general of the prestigious Council of Scientific and Industrial Research (CSIR), said India was deliberate and  careful in making its challenge. It zeroed down on just three claims because ''once we make a representation we have to stick by it''.

Mashelkar was inclined to view the case as a good example of how developing countries can defend their property.

But the activists point out that the USPTO allowed RiceTec to amend two of its claims (12 and 13) before giving its ruling. ''India should have been given an opportunity to contest those claims and withdrawals,'' Sharma said.

But India was never asked whether it agreed to the remaining claims on which the patent has been granted. Yet, the patent says that the lines that the RiceTec has produced are not known in 'prior art' and have unique genetic characteristics and are therefore patentable.

Doll, in his 'Notice of Intent to Issue Re-examination Certificate' to Rice Tec, upheld three claims relating to novel strains and generously allowed  amendments to two claims, while striking down others.

Sharma and Sahai also see as unfair the delay in recognising India's claim to have 'basmati' and other products protected under geographical indications provisions of the World Trade Organisation (WTO)'s Trade-Related Aspects of Intellectual Property Rights.

“So far, the protection has been offered only to wines and spirits and the efforts of India and developing countries to have the protection extended to other agricultural produce like 'basmati' rice and Darjeeling tea have been opposed by the developed countries,” said Sahai.

But what intrigues the campaigners is why the Indian government has decided that it would not contest the patent granted to RiceTec on the grounds that it did not prevent India's marketing of 'basmati' rice in the United States anyway.  ''We neither have the reasons nor the grounds to challenge it,'' a commerce ministry official said. In any case, the official said, the United States accounted for just seven percent of the 800,000 tonnes of 'basmati' rice that this country exports annually.

In contrast, however, India's federal Agricultural Minister Ajit Singh admitted Wednesday that India had wasted precious time in putting strong  case with the USPTO against the patenting of 'basmati' rice varieties by  RiceTec.

Singh's opinion went against a declaration by commerce ministry that the USPTO order was a victory for India, in as much as RiceTec has been denied the use of the word 'basmati' as a brand name.

''Rice Tec is now left with only five claims and these have little commercial importance to India,'' said Anil Swarup, a commerce ministry official.

The commerce ministry's interpretation found support from Vandana Shiva, the biodiversity campaigner who prodded the government into challenging RiceTec's patents by obtaining a Supreme Court direction in 1998 a year after the patents were originally granted.

''The surviving claims by RiceTec now needs to be challenged as part of the larger movement against patents on life forms,''  Shiva said.

The bulk of India's 'basmati' exports goes to Saudi Arabia, which disallows the use of the word 'basmati' on rice originating from anywhere other than India and Pakistan.

Similarly, the Grain and Feed Trade Association of the United Kingdom, major importer of 'basmati', has stringent standards for the use of that  appellation. Its members can use the name only for long-grain aromatic rice grown in India and Pakistan.

Yet the Indian government has been reluctant to point these facts out to the USPTO -- or even to tell it that it cannot call RiceTec's patented equal or superior to 'basmati' rice grains and pronounce it as having the cooking properties of 'basmati' grains, Sharma said.

''Elongation of rice grains on cooking and aroma are distinct properties of 'basmati' and cannot be made applicable to any other rice variety. Why is the USPTO allowing this in the case of the varieties developed by RiceTec?'' he asked.

Nearly 48 percent of the 4,000-odd plant patents granted by the USPTO in the recent past pertain to traditional knowledge from countries like India.

''If India is reluctant to 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,'' Sharma asked.

(END/IPS/AP/IF/HD/RDR/JS/01)