Read the following case on patent law and answer the questions that follow : Trade Related aspects of Intellectual Property Rights (TRIPS) defines geographical indication as "goods originating in the territory of a membe

CS Professional · Intellectual Property Rights - Law and Practice · PYQS · December 2016
Read the following case on patent law and answer the questions that follow : Trade Related aspects of Intellectual Property Rights (TRIPS) defines geographical indication as "goods originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the goods is essentially attributable to its geographical origin". In the Indian legal system, Geographical Indication (GI) is governed by the Geographical Indications of Goods (Registration and Protection) Act, 1999. A case relating to GI is that of 'Basmati rice' being patented in the United States of America (USA). Basmati rice is regarded as the 'queen of fragrance or the perfumed one' and is also acclaimed the 'crown jewel' of South Asian rice. It is treasured for its intense fragrance and taste, famous in national as well as international markets. This kind of rice is grown in the Himalayan hills, Punjab, Haryana and Uttar Pradesh since times immemorial. Basmati is the finest quality of rice, long grained and the costliest in the world. Agricultural and Processed Food Products Export Development Authority (APEDA) states India to be the second largest exporter of rice after China. USA is a major importer of Basmati rice totalling 45,000 tonnes. An important case in the history of GI and bio-piracy arose in 1997. Royal Rice Tec Inc. (RRT), a tiny American rice company with an annual income of around US $10 million and working staff totalling 120, produces a small fraction of the world's (Basmati like) rice with names 'Kasmati' and 'Texmati'. RRT had been trying to enter the world rice market since long, but in vain. On 2nd September, 1997, RRT was issued a patent for its Basmati rice lines and grains by United States Patent and Trademark Office (USPTO) bearing patent number 5663484, which gave it the ultimate rights to call the odoriferous rice 'Basmati' within US, and label it the same for export internationally. According to RRT, its invention of Basmati rice relates to novel rice lines, which affords novel means for determining cooking and which has unique starch properties, etc. Since times immemorial, majority of farmers from India have been sustaining cultivation of Basmati rice and have been among the leading rice producers of the world. Cultivation of rice is not merely a life sustainer but also a part of socio-culture in India. Basmati rice produced in India has been exported to countries like Saudi Arabia and UK. Basmati is a 'brand name' of the rice grown in India. Two Indian NGOs, namely, Centre for Food Safety, an international NGO that campaigns against bio-piracy, and the Research Foundation for Science, Technology and Ecology, an Indian environmental NGO, objected to the patent granted by USPTO and filed petitions in the USA. Council for Scientific and Industrial Research (CSIR), a Government of India organisation also objected to the patent granted to RRT. They demanded an amendment of US Rice Standards on the ground that the term 'Basmati' can be used only for the rice produced/grown in the territories of India. According to RRT, the invention relates to novel rice lines and to plants and grains of these lines. The invention also relates to a novel means for determining the cooking and starch properties of rice grains and identifying desirable rice lines. Specifically, one aspect of the invention relates to novel rice lines whose plants are semi-dwarf in stature and give high yielding rice grains having characteristics similar or superior to those of good quality Basmati rice. Another aspect of the invention relates to novel rice lines produced from novel rice lines. The invention provides a method for breeding these novel lines. A third aspect relates to the starch index (SI) of the rice grain, which can predict the grain's cooking and starch properties and for selecting desirable segregates in rice breeding programmes. The Government of India reacted immediately after learning of the Basmati patent issued to RRT, stating that it would approach the USPTO and urge them to re-examine the patent to a US 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 representatives of the Ministries and Departments of Commerce, Industry, External Affairs, Agriculture and Bio-Technology, CSIR, All India Rice Exporters Association (AIREA), APEDA and Indian Council of Agricultural Research (ICAR) was mobilised to begin an in-depth examination of the case. In the presence of widespread uprising among farmers and exporters, India as a whole feels confident of being able to successfully challenge the Basmati patent by RRT, which 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 RRT. The lawyers plan to challenge this patent on the basis that the abovementioned plant varieties and grains already exist and thus cannot be patented. In addition, they accessed some information from the US National Agricultural Statistics Service in its Rice Year book 1997, released in January 1998 to the effect that almost 75 per cent of US rice imports are the Jasmine rice from Thailand and most of the remainder are from India, 'varieties that cannot be grown in the US'. This piece of information is sought to be used as a weapon against RRT's Basmati patent. Indians feel that the USPTO's decision to grant a patent for the prized Basmati rice violates the International Treaty on TRIPS. The President of the Associated Chambers of Commerce (ASSOCHAM) said that Basmati rice is traditionally grown in India and granting patent to it violates the Geographical Indications Act under the TRIPS. The TRIPS clause defines Geographical indication as "a good originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the goods is essentially attributable to its geographical origin." As a result, it is safe to say that Basmati rice is as exclusively associated with India as Champagne is with France and Scotch Whiskey with Scotland. Indians argue that just as the USA cannot label their wine as Champagne, they should not be able to label their rice as Basmati. If the patent is not revoked in the USA, because unlike the Turmeric case, rice growers lack documentation of their traditional skills and knowledge, India may be forced to take the case to the WTO for an authoritative ruling based on violation of the TRIPS. In the wake of the problems with patents that India has experienced in recent years, it has realised the importance of enacting laws for conserving biodiversity and controlling piracy as well as intellectual property protection legislation that conform to international laws. There is a widespread belief that RRT took out a patent on Basmati only because of weak, non-existent Indian laws and the Government's philosophical attitude that natural products should not be patented. According to some Indian experts in the field of genetic wealth, India needs to formulate a long-term strategy to protect its bio-resources from future bio-piracy and/or theft. British traders are also supporting India. According to Howard Jones, marketing controller of the UK's privately owned distributor Tilda Ltd., "true Basmati can only be grown in India. We will support them in any way if it's necessary". The Middle East is also according support by labelling only the Indian rice as Basmati. Government and government agencies have gathered the necessary data and information to support their case and to prevent their cultural heritage being taken away from them. Questions – How does the patent granted to RRT by USPTO impact the farmers in India ?

Answer & Explanation:

RRT's patent could impact Indian farmers in the following two possible ways: By displacement of Basmati exports from India; and By monopolizing the Basmati seed supplies. Regarding the first possible inroads which may be made by the USA into the South Asian export markets, it is a matter of concern to the Indian farmers. In 1995, USA produced 7.89 million metric tons of rice and in the same year India produced 122.37 million metric tons of rice. American rice exports are significantly greater than India, implying that USA has a greater production surplus. In 1994 itself, USA exported more volumes of rice as compared to India and its neighbouring sub-continent. Therefore, owing to the RRT's patent, it seems that potential exists for USA to displace Indian Basmati exports. Criticism from Indian rice farmers logically ensued, as many were forced to pay royalties to the conglomerate. The production and cultivation of Basmati has with it a history dating back to centuries ago. For farmers, the grain is an entity that is constantly evolving. In the context of India, Basmati rice has always been considered a common resource dependent upon word of mouth knowledge and transfer. Using this logic, Rice Tec alleged that the 'Basmati' name was in public domain, and that by patenting it; they were in actuality protecting its name and origins. RRT soon came out with hybrid versions: Kasmati, Texmati, Jasmati, which for rural farmers clearly illustrated the profit based interest of the conglomerate. Through its acquisition, RRT patented some 22 varieties of the rice. One of which being Basmati 867, a rice grain which was very similar to original Basmati but was advertised to have a less chalky more refined taste. The severity of RRT's bio piracy cannot be underestimated, as the conglomerate was claiming to have invented the physical characteristics of Basmati such as the plant height and grain length. By claiming ownership of the rice plant itself, RRT was directly threatening rural farming communities. A second and more serious threat is that, through its patent, RRT could acquire a monopoly over Basmati seed supply to the sub-continent. It is a premier developer of commercial hybrid rice varieties in the USA. A precedent exists that foreign agri-business companies have bought hybrid seeds to Third World Countries. For example, Monsanto has recently undertaken a joint venture with Grameen Bank in Bangladesh to distribute its hybrid seeds through loan packages to small farmers. Hybridization is likely to harm small farmers more as they are less able to absorb the higher seed costs. In its extreme form, such hybridization could harm genetic diversity and deplete farmlands of their intrinsic resources.

Topics: Geographical Indications

Open in Interactive Practice Hub · Full Practice Hub · Chapter Weightage · More in this subject

Related Questions in this Topic