Basmati Rice Patent Battle

Muhammad Bilal

Basmati Rice Patent Battle

Intellectual Property • Intellectual property (IP) is a legal concept which refers to creations of mind for which exclusive rights are recognized. • Under intellectual property law, owners are granted certain exclusive rights to their tangible and intangible assets.

Basmati Rice Patent Battle Intellectual Property • Intellectual property (IP) is a legal concept which refers to creations of mind for which exclusive rights are recognized. • Under intellectual property law, owners are granted certain exclusive rights to their tangible and intangible assets. Intellectual Property Rights • Trademarks™: A trademark is a sign that individualizes the goods of a given enterprise and distinguishes them from the goods of others. It can be in the form of words, designs, letters or numerals etc. • Patent: A patent is a set of exclusive rights granted by a state to an inventor or assignee for limited period of time. Only the assignee have rights to make and sell the invented product. • Copyrights©: Copyright deals with the protection of literary and artistic works. These include writings, music, and works of the fine arts, such as paintings and sculptures, and technology-based works such as computer programs and electronic databases. Intellectual Property Rights • Geographical Indications: Geographical Indication in relation to goods, means , an indication which identifies such goods, as originating or manufactured or produced in a territory of a qualifying country or a region or a locality of a qualifying country , where a given quality, reputation or other characteristic of such goods, is essentially attributable to its geographical origin. • GRTKF: GRTKF stands for Genetic Resources, Traditional Knowledge and Folklore. GRTKF have been identified as types of non-conventional Intellectual Property (IP) during last few decades. IPRs Controlling Authorities • • • • World Intellectual Property Organization (WIPO) World Trade Organization (WTO) TRIPS African Regional Intellectual Property Organization (ARIPO) Agriculture IPRs History: Intellectual property protection has been extended in the last 25 years to a wide range of information, materials and products relevant to food and agriculture. The US Supreme Court decision in Diamond vs Chakrabarty influenced national legislation and case law in many jurisdictions, opening the door for the patentability of living organisms, including microbes, plants and animals and their parts and components. Agriculture IPRs • Plant Breeder’s Rights (PBR): Plant Breeders' Rights (PBR), also known as plant variety rights (PVR), are rights granted to the breeder of a new variety of plant that give them exclusive control over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years. Agriculture IPRs • Benefits of Plant Breeder’s Rights • • • • • • • PBR protection allows you to exclude others from: producing or reproducing the material conditioning the material for the purpose of propagation offering the material for sale selling the material importing the material exporting the material stocking the material for any of the purposes described above. Agriculture Patent The main criteria for agriculture patent in PBR is: • • • • Novelty Inventiveness (non-obviousness) Utility Reproducibility Some Patented Plants Plant Patent Number Grape plant “La Crescent” PP14617 Apple tree “Eve's Apple” PP8544 Strawberry plant “Aromas” PP10451 Apricot tree “Ruby” PP8177 Blueberry plant “Emerald” PP12165 Bioprospecting • Bioprospecting is an umbrella term describing the process of discovery and commercialization of new products based on biological resources. Bioprospecting often draws on indigenous knowledge about uses and characteristics of plants and animals. Biopiracy • Biopiracy is a situation where indigenous knowledge of nature, originating with indigenous peoples, is used by others for profit, without permission from and with little or no compensation or recognition to the indigenous people themselves. Biopiracy Cases • • • • • The Rosy Periwinkle The Neem Tree The Enola Bean Hoodia Basmati Rice Basmati Rice Patent Case • • • • • • • • CASE NUMBER: 493 CASE MNEMONIC: Basmati CASE NAME: India-US Basmati Rice Dispute Patent number: US5663484 A Publication type: Grant Application number: US 08/272,353 Publication date: Sep 2, 1997 Filing date: Jul 8, 1994 Basmati Rice and Asia • Rice is an important aspect of life in the Southeast and other parts of Asia. • For centuries, it has been the cornerstone of their food and culture. • Basmati has been grown in the foothills of the Himalayas for thousands of years. • Basmati rice is being grown in subcontinent for centuries. • Its flavour and aroma has been developed through selective breeding for thousands of years. • It is common knowledge that what Champagne is to France, Basmati is to subcontinent (Pakistan and India). Basmati Rice • Basmati means the “queen of fragrance or the perfumed one”. • Origin: Pakistan and India • Indian varieties are Safidon, Haryana, Kasturi (Baran, Rajasthan), Basmati 198, Basmati 217, Basmati 370, Kasturi, Mahi Suganda. • Pakistani varieties Basmati 370, Super Basmati, Pak (Kernal) Basmati, Basmati 386, Basmati 385 and Basmati 198. Identification of Basmati Rice Identification of Basmati Rice The Case Issue In the late 1997, when an American company RiceTec Inc. was granted a patent by the US patent office to call the aromatic rice grown outside India "Basmati", India objected to it. India has been one of the major exporters of Basmati to several countries and such a grant by the US patent office was likely to affect its trade. Since Basmati rice is traditionally grown in India and Pakistan, it was opined that granting patent to RiceTec violated the Geographical Indications Act under the TRIPS agreement. A geographical indication (sometimes abbreviated to GI) is a name or sign used on certain products which corresponds to a specific geographical location or origin (e.g.. a town, region, or country). The use of a GI may act as a certification that the product possesses certain qualities, or enjoys a certain reputation, due to its geographical origin. RiceTec's usage of the name Basmati for rice which was derived from Indian rice but not grown in India, and hence not of the same quality as Basmati, would have lead to the violation of the concept of GI and would have been a deception to the consumers. RiceTec Company Details • • • • Owned by Prince Hans-Adam of Liechtenstein. 120 company employees. Annual sales 10 million US Dollars. Rice developed by RiceTec are: Bas 867, RT 1117, RT 112. Company’s Words “We are absolutely confident in our patent and viability and legality. There is no basis for challenging the patent”. RiceTec Inc. Patent Claims RiceTec put 20 claims about their product from which few ones are: • • • • semi-dwarf in stature substantially photoperiod insensitive high yield Having characteristics similar or superior to those of good quality basmati rice • The invention provides a method for breeding these novel lines • Starch index (SI) of a rice grain can predict the grain's cooking and starch properties • Claiming that “Aroma” has been developed by RiceTech Inc. is misleading – RiceTech Inc. claimed that it tool them 10 years to develop the Aroma in their rice line • Branding a Basmati lookalike as Basmati – They used inbreeding of ordinary american rice with sub continental Basmati rice and patented this hybrid as Basmati Patent Advantage to RiceTech • RiceTec able to not only call its aromatic rice Basmati within the US, but also label it Basmati for its exports. • Captures the whole US trade market. • Exclusive use of the term “basmati”. • Monopoly on breeding 22 farmer-bred Pakistani basmati varieties with any other varieties in the Western Hemisphere. • Proprietary rights on the seeds and grains from any crosses. Disadvantage of Patent to India and Pakistan • Economic loses. • Global trade losses. • Both countries lose their global market share. Why the Name Basmati • • • • • Brand Association Reputation Market share Superior features/characteristics Confusing the customers into buying their product (Passing Off) Government of India Response to Patent • Government of India under severe pressure from its exporters and farmers logged an appeal with USPTO. • They submitted the evidence to USPTO. • India exports about 400,000 - 500,000 metric tons of Basmati annually. In 1996-97, India exported approximately 523,000 tonnes of Basmati to Europe. Government of Pakistan Response • No official response was given to the situation. • It is speculated that because share of Indian Basmati is more in International Market, hence, the more severe response from them. • So do you think Pakistani Government and Exporters need more education in IPRs? Facts of the case • RiceTec Inc has earlier tried to enter the market. • Their two main brands of rice were: – Texmati. – Kashmati. Whether the term ‘basmati’ is a generic one to describe aromatic rice, or does it refer specifically to the long aromatic rice grown in India and Pakistan? Whether the strain developed by RiceTec is a novelty? Whether RiceTec is guilty of biopiracy? Whether US government’s decision to grant a patent for the prized Basmati rice violates the International Treaty on Trade Related Intellectual Property Rights (TRIPS)? Whether the basmati patent should be revoked in the light of protests from India? Result • RiceTec Inc. took back 15 claims out of 20 • They also took back its claim on the name “Basmati”. A Global Appeal is necessary • Large numbers of patents on living organisms have been granted in US and Europe. • patents have become a driving force behind genetic engineering. • It has allowed the agricultural and breeding sectors to be organized in an completely new economic context. Patents on conventional seeds, plants and animals • Reorganization of the seed market. • Leading to a greater integration with the agrochemicals sector. • All large seed companies have been bought up by agrochemical companies. – Monsanto – Syngenta – Dupont – Baye – BASF • Monsanto , had spent about 10 billions US dollars in 10 years to take over companies in the agricultural sector • Today, around 50% of the global seed market is controlled by only 10 multinational companies • European laws were changed to erode the prohibition of patents on plant varieties (EC Directive 98/44) Shifts in technology and public rejection of genetic engineering • The public is skeptical about genetic engineering. • Only a very few traits being commercialized via genetic engineering. • Conventional plant breeding in combination with some specific technological procedures, such as gene identification,- so called marker assisted breeding - has became more interesting for the big companies. Why Agricultural Patents are being pursued? • To establish monopolies. • To establish exclusive control over trade. • To have competitive advantage. EXAMPLES OF BIO-PIRACY 1. 2. US Patent 5401504 granted for the use of turmeric powder for healing wounds. Applicant did not disclose fully existence traditional knowledge on the subject matter in India. This was made available by India to USPTO, and the patent was revoked. European Patent Office granted Patent EP0436257 on a method for controlling fungi on plants by the aid of a hydrophobic extracted neem oil, a knowledge that was extensively used in India already. NGOs and a European Parliament helped in getting the patent revoked. REMEDIES FOR BIO-PIRACY • National policies for sustainable use of biological resources. • National laws implementing obligations under Convention on Biological Diversity (CBD). • International recognition of these policies and laws through binding obligations. • Implementation of these binding obligations universally. STEPS TO PREVENT BIO-PIRACY BY DEVELOPING COUNTRIES • CBD is negotiating an international agreement; results possible by 2010. • WIPO has a programe for assessing ways to contribute to sustainable commercial use; not much progress. • Developing countries have a proposal in the WTO seeking an amendment of the trips agreement to provide for disclosure of source providing biological resources and evidence of access and benefit sharing. FUTURE STEPS • Many countries have national access and benefit sharing laws; more should follow. • Switzerland’s effort to amend the patent law in the right direction-giving the patent system a human face; worries of biotech companies unnecessary. • Industry should follow best practices in the meanwhile, as shown by Novozymes A/S, Denmark. THANK YOU

This chapter considers the dynamics of trade negotiations in the knowledge economy, and the differences in cultural and economic interests that make these negotiations so strikingly contentious in relation to biological resources and associated knowledge. Divergent value systems lead to questioning of the legitimacy and equity of derivative or imitative innovation: can innovation become an act of unfair competition; what bright line divides biopiracy from legitimate trade? In the negotiating coinage of ‘knowledge diplomacy’ (Ryan, 1998), innovation is offset against the protection of heritage and traditional values; concerns that imitative innovation may be a form of misappropriation can lead to the withdrawal of knowledge resources from the common heritage or from a contested public domain to become ‘a form of national property’ (Kloppenburg, 1988) or a protected collective commons. Rifkin (2001) ponders the emergence of an ‘economy of granters of access’ – but the conditions of access can be determined by new or established notions of property right, as the contours and boundary of the common heritage and public domain mutate under the pressure of trade-related negotiations. What is at stake are the terms of access to technological knowledge (whether traditional or ‘high tech’), genetic resources (GR), traditional methods and product descriptions, descriptive or evocative language, and cultural expressions – in short, access to knowledge resources, the feedstocks of the knowledge economy. These questions are explored by contrasting multilateral negotiations over GR with bilateral negotiations on trade in wine. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is symbolic of a general reassessment of national ‘capital,’ but the ‘new’ economy is not necessarily seen as an idealized, technologically advanced economy. Genetic resources and related traditional knowledge (TK) are ‘enclosed’ because of their perceived value, or through fear of others unfairly appropriating their value: increasingly claims of unfair competition and illegitimate trade barriers in agriculture will be intertwined with the debate about access to GR and the fading ideal of ‘common heritage.’ Negotiators addressing trade in knowledge are dealing with the tension between the non-rivalrous quality of knowledge resources, and the instinct to enclose to appropriate its value that was notably articulated by Brand (1987): ‘[I]nformation wants to be free because it has become so cheap to distribute, copy, and recombine - too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away. It leads to endless wrenching debate about price, copyright, 'intellectual property', the moral rightness of casual distribution, because each round of new devices makes the tension worse, not better.’

This Article describes how the mainstreaming of TK as a TRIPS-related issue was achieved and explains why so much effort was made to achieve it. In addition, this Article shows how developing countries’ use of TK as an issue is likely to influence their compliance with TRIPS. TK is an interesting example of an issue formulated and promoted by NGOs, subsequently adopted by trade negotiators, and then introduced into a highly unpromising forum for achieving solutions on TK, yet the most effective forum for the pursuit of a rather different agenda: that of justifying decelerated compliance with TRIPS and perhaps even rolling back the strong IPRs it requires WTO members to provide. Part I of this Article investigates the meaning of the term “traditional knowledge” and estimates the importance of TK to the global economy. Policymakers are more likely to grasp the economic significance of TK than its actual meaning, which turns out to be quite elusive. TK is often (and conveniently) assumed to be in the public domain. This is likely to encourage the presumption that nobody is harmed and no rules are broken when research institutions and corporations use it freely. In fact, as Part II explains, this presumption is not only false but the implications of its wide acceptance may be detrimental for traditional peoples and communities. Part III aims to answer the question of whether it is appropriate to treat protection of TK as a problem that existing IPRs can solve. This section should, on balance, cast doubt on whether TRIPS would be an appropriate forum for negotiations on TK if securing effective protection of the rights of traditional peoples and communities over their knowledge were the sole objective. In reality, this may not be true. As Part IV shows, rightly or wrongly many developing countries believe that TRIPS is a concession to developed countries that was made under duress and is inadequately compensated for by the efforts made so far by the latter countries to open up their markets to the former countries’ goods. Finding themselves pressured to comply with TRIPS before the expiry of the permitted transitional periods and to accept the advice of the United States and the European Union as to how the rules should be interpreted, these countries have found TK to be an issue they can use strategically to deflate such pressure. The early indications are that this strategy is to some extent successful, although traditional peoples and communities are unlikely to benefit.

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Basmati Rice Patent Battle