For a Grain of Rice

by

Prabuddha Ganguli

Basmati as a term has excited the organoleptic feelings in people for times immemorial. However, in recent times, this has an added dimension related to diverse aspects of the Intellectual Property Rights (IPR) with varying emotive feelings ranging from anger, despair to helplessness.

The issue needs to be objectively analysed in the context of the relevant IPR tools such as patent, trademark and geographical indication, keeping in mind the allowed rules of the game. Trade Related Intellectual Property Rights (TRIPS) provides a harmonised framework for the members of the World Trade Organisation (WTO).

Patents are granted for inventions that are new, non-obvious with respect to what is already known to humankind till the day of the patent application and has some utility. Thus any invention related to rice would be patentable if it satisfies all these conditions.  The invention could be for enhancing the flavour, improving the cooking features of the rice, etc.

RiceTec was granted a US Patent 5663404 in 1997 titled 'Basmati rice lines and grains' in which there were 20 claims. The main claim of the patent was for a rice plant, cultivated in North, Central or South America, or Caribbean Islands.

The abstract of the patent states: "The invention relates to novel rice lines and to plants and grains of said lines. The invention also relates to a novel method for identifying rice grains that can be cooked to a specific texture and the use of said method to select for desirable rice plants in breeding programmes. Specifically, one aspect of the invention relates to novel rice lines with plants that are semi-dwarf in stature, substantially photoperiod insensitive and high yielding, and that produce rice grains having characteristics similar or superior to those of good quality basmati rice grains produced in India and Pakistan.

"Another aspect of the invention relates to novel rice grains produced from said novel rice lines. The third aspect of the invention relates to the finding that the likely texture and firmness of cooked rice can be predicted by the 'starch index' (SI) of the grain and to the use of SI to identify desirable segregants in rice breeding programs."

In June 2000, the Agricultural and Processed Food Products Export Development Authority (APEDA) India, challenged this patent at the US Patent Office. In September 2000, RiceTec withdrew four claims that dealt with the starch content, length of the grain, chalkiness, 2-acetyl-1-pyrolline content and burst index (claims 4, 15-17). On March 27, 2001, the USPTO mailed a detailed report to RiceTec allowing only three specific claims (nos. 8, 9 & 11)
of this patent. These are:

      Claim 8. A rice plant produced from Bas 867 seed having the accession
number ATCC 75941.

      Claim 9. A rice plant produced from RT1117 seed having the accession
number ATCC 75939.

      Claim 11. A rice plant produced from RT1121 seed having the accession
number ATCC 75940.

The RiceTec Patent in the US is now very specific to these lines which are not cultivated in India and as it now stands is of no consequence to Indian farmers or Indian exports to the US and other parts of the world.

This once again demonstrates the transparency of procedures in the patent system, that is, when a patent is challenged on proper grounds, it can be invalidated. It does however raise issues of credibility of the USPTO's patent examination system especially when related to the granting of patents on such subject matter.

Trademark is granted for distinctive signs, words or their combinations (including sound and smell in some countries) that help to distinguish products and services. Trademark helps the consumer to select a product of his/her choice in the market place. This is also linked to the labelling of products. Basmati is sold under different trademarks such as 'Kohinoor', 'Lal Quila' etc.
 
Geographical Indication (GI) as another IPR tool affords protection to goods that can be identified as originating or manufactured in the territory of a country, or a region or locality in that territory where a given quality, reputation or other characteristics of such goods is essentially attributable to its geographical origin.

In the present context, the key questions are: whether Basmati has been defined in terms of its distinctive characteristics, whether it is indeed identifiable in terms of these characteristics as a produce of certain regions in India and Pakistan, whether India and Pakistan have protected Basmati in their own countries as geographical indications?

It may be noted that neither India nor Pakistan has taken any proactive steps to protect Basmati as a geographical indication in their respective countries. RiceTec has been selling its 'basmati' rice under brand names 'Texmati' and 'Kasmati' in the US. In 1997, the Trademark Administrative Authority in Greece rejected RiceTec from using 'Kasmati' in Greece on an appeal by APEDA. In January 1999, RiceTec also withdrew its trademark application for 'Texmati' in the UK.

The US Federal Trade Commission (FTC) submitted a report dated May 15, 2001, (FTC file no. P014506) in response to a petition filed by three NGOs requesting FTC to begin a rule-making proceeding to prohibit advertisers and marketers in the US from using Basmati and Jasmine to characterise rice grown in the US. In denying the petition, the commission said "it found no reason to believe that significant consumer injury is likely to be arising from current rice marketing. Under US department of agriculture regulations, Basmati and Jasmine are included as examples of aromatic rough rice and are not limited to rice grown in any particular country."

Moreover, the commission said it had no evidence to suggest that US rice grown is being misrepresented as rice from any other parts of the world. The US FTC, based on their review of rice packaging concluded, the American Basmati and Jasmine rice products are labelled as US grown, with clear descriptions such as 'the American Basmati Rice'.
This implies that US FTC does not consider Basmati as a distinctive product only from India or Pakistan. The matter could possibly have been different had India and Pakistan proactively protected Basmati as a GI well ahead of time.

Basmati and other recent cases related to neem and turmeric highlight that in addition to informed awareness, India and the developing world must urgently gear up for a long drawn tryst with realities of Intellectual Property Rights as they will impact their internal and external trade, industry and everyday lives. The battles have to be objectively fought within the rules of the game and not on broad emotive lines.

We urgently need to:

Set up a National Commission on Intellectual Property Rights. With a team of experts it should review all IPR matters of national significance and recommend comprehensive steps to be taken by nodal agencies in India and in other countries to protect India's competitive position in international trade. We must address the issue of geographical indication and immediately shortlist the items in India for their registration as GI.

Get the industry associations and industry clusters to exploit the provisions of the Indian Trade Mark Act, 1999, especially as applicable to the Collective Marks and Certification Trade Marks for their members. Re-negotiate Articles 22, 23 and 24 of TRIPS that deal with GI to include the traditional products from developing nations for additional protection as is done through Article 23 for wines and spirits.

Set up a national IPR vigilance cell to monitor IPR activities in various countries so that timely action can be initiated by India if necessary.  Initiate 'informed IPR awareness programmes' for enhanced capability building and to sensitise the Indian public on IPR issues.

Only then will India be in a position to face the emerging IPR scene with a sense of confidence and pride.