PAKISTAN and India have decided to constitute a working group which will take measures to jointly patent Basmati rice to protect it against any piracy threat. The decision was taken at a commerce secretary level talks held at Islamabad on March 29. A joint statement by the two sides did not say more than that.
So, the curiosity remains as to how the two countries are going to jointly patent a variety of rice, much sought after in the world for its fragrant taste and developed by farmers in the subcontinent over hundreds of years. The simple fact is that Basmati rice is not a one man’s or a firm’s invention/innovation that could be registered as a patent.
Basmati falls in the category of goods that are protected as a geographical indication or indicator. Geographical indication is a form of intellectual property right included in the Trips under a clause that deals with the protection of goods which are geographically indicated and are an outcome of labour of people of the particular area of several centuries.
The clause defines geographical indication as “a good originating in the territory of a member (country), or a region or locality in that territory, where a given quality, reputation or other characteristic of the good are essentially attributable to its geographical origin.”
Under this definition, Basmati rice, being a product of traditional knowledge, is as exclusively associated with India and Pakistan as is Champagne with France or Scotch Whiskey with Scotland.
This kind of protection has been specially conceived for well known specialty products which are associated with a particular region. The word ‘Champagne’ is claimed exclusively by the Champagne region of France which is the geographical region from where the wine derives its famous name.
No other wine, even if it is made from the same grape variety, by the same method, and is identical in taste, aroma and other qualities, can be called ‘Champagne’. The French are too proud of it and are too sensitive and aggressive about protecting this name.
An equal sense of pride is associated, for the people of the subcontinent, with Basmati rice which has been grown for centuries in what was the Greater Punjab region, now divided between India and Pakistan.
Farmers in this region have selected and maintained Basmati rice varieties that are recognized worldwide for their fragrant aroma, long and slender grain and distinct taste. Basmati, a long-grained rice with a fine texture is the costliest in the world and has been a favourite food of emperors in India. It is grown over an area of about one million hectares in India and 0.75 million hectares in Pakistan.
That it only belongs to India and Pakistan is accepted in most of the world. The Grain and Feed Trade Association in the United Kingdom, one of the largest importers of Basmati rice in the world, has stringent standards for using the term ‘Basmati’. Its traders can use this name only for the long grain, aromatic rice grown in India and Pakistan.
Similarly, Saudi Arabia, the largest Basmati importer of Basmati, has labelling regulations that permit this variety of rice from only India and Pakistan to be labelled as such. American and Thai aromatic, long-grain rice varieties are denied the use of this name.
In view of this worldwide recognition, there is no reason why India and Pakistan should not use the geographical indication clause to protect it from any possible misuse or piracy.
And it has already suffered a serious pirate attack. It occurred in 1997 when the US Patent and Trademark Office (USPTO) granted patents to a Texas-based company RiceTec on 20 varieties of Basmati rice and also allowed them to be labelled as Basmati. It took 30 months for the Indian government to mount a legal battle against the grant of patents but still it was mainly fought by the NGOs. New Delhi, it is interesting to note, challenged only three claims related to rice grain (No.s 15-17) in April 2000. In return, RiceTec gave up four claims to retain the other 16 claims.
According to Vandana Shiva, an Indian physicist and a leading activist and whose NGO was the key fighter in this battle, the claims related to seed were not challenged by the Indian government.
The re-examination request filed in the USPTO by the government was done in the name of agricultural and processed food products export development authority (APEDA) and no challenge was made to the remaining claims, thus totally sidelining the issue of protection of farmers’ rights. The government was more eager to protect traders’ interests which are linked to grain and not farmers’ rights which are linked to seeds.
On August 14, 2001, the USPTO finally upheld the patent granted to RiceTec but on three “ rice lines” only and rejected the other 17 claims. Its order did not allow for the use of the word ‘Basmati’ as a trademark, but RiceTec could sell its product as “Bas 867” and label it as “superior basmati rice”. The company had earlier attempted to sell its pirated products as Texmati and Kasmati.
RiceTec’s patent is a classic case of biopiracy. Not only did the patent usurp the basmati name, it also capitalised on the genius of South Asian farmers.
The US companies have always been very eager to obtain patents on genetic and plant resources of the Third World countries. Currently, there are more than 600 patents on rice alone in the US. From a scientific and techno-legal viewpoint, the basmati patent case was an extremely difficult one to contest, unlike that of turmeric (the US had earlier granted a patent to two Indian-born scientists on the use of turmeric as a wound healing agent), in which the Indian Council of Scientific and Industrial Research contested the grant of the patent and got it revoked.
On August 8, 2000, the USPTO granted a patent on “a method for producing atta flour — typically used to produce Asian breads such as chapatti and roti “ to a Nebraska-based private company, ConAgra Inc. The so-called ‘invention’ related to a method for producing wheat flour or atta.
And, in 2004, Monsanto, a leading US biotech multinational, got a patent on ‘Chapati’ from the European paten office. The way the US and European governments often grant patents makes a mockery of the entire intellectual property regime.
No consideration is given to the criteria of invention or novelty. That, they say, can be contested later. Not many are aware that Nestle, a European multinational, had secured a patent on vegetable pulao. What was so novel about the patent is a mystery. In India and Pakistan, there are hundreds of recipes for making vegetable pulao.
Meanwhile, Vandana Shiva is sceptic about protecting traditional knowledge and genetic resources through the use of geographical indications (GIs) which she describes as “a blinds alley”. Although a law to this effect has already been passed in India, the GIs are, she says, inadequate for defence of farmers’ rights and the rights to traditional knowledge and biodiversity for a number of reasons.
The GIs are, of course, relevant to Basmati and Darjeeling tea. But bio piracy is not restricted to Basmati. Already karela, jamun, tamarind, haldi, neem, ginger, anar, pepper, amla have all been granted patents abroad. Shiva says: “No GIs would work to prevent the bio piracy of hundreds of medicinal plants and crops. To prevent that, we need a genuine ‘sui generis’ system which protects the collective, cumulative innovations, embodied in traditional knowledge as a societal common property.”
. Then, the WTO has so far blocked India’s attempts to have Basmati and Darjeeling tea included in Geographical Indications. Although it has granted protection to wines and spirits of the western countries, it is reluctant to provide a similar protection to Indo-Pakistan subcontinent’s obvious geographical indications.
In fact, the domestic laws on GIs will remain toothless without appropriate Amendments in Trips. So, India and Pakistan need to launch a vigorous effort in the WTO in this respect.
More often than not, bio piracy occurs in the West and that too primarily because of the inherent western bias towards the Third World. The West still suffers from the ‘Columbian blunder’ and assumes it has the right to plunder the resources of the non-West countries by treating their people’s knowledge systems as non-existent, hence empty of prior creativity and prior rights, and hence available for ‘ownership’ through the claim of ‘invention’.