Basmati Rice Patent Battle

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 RightsPBR 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 NumberGrape 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

• 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 and Asia

• 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.

• Brand Association• Reputation• Market share• Superior features/characteristics• Confusing the customers into buying their

product (Passing Off)

Why the Name Basmati

• Government of India under severe pressure from its exporters and farmers logged an appeal with USPTO.

• They submitted the evidence to USPTO.

Government of India Response to Patent

• 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.

• 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?

Government of Pakistan Response

• RiceTec Inc has earlier tried to enter the market.• Their two main brands of rice were:

– Texmati.– Kashmati.

Facts of the case

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?

• RiceTec Inc. took back 15 claims out of 20• They also took back its claim on the name

“Basmati”.

Result

• 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.

A Global Appeal is necessary

• 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

Patents on conventional seeds, plants and animals

• 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)

• 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.

Shifts in technology and public rejection of genetic engineering

• To establish monopolies.• To establish exclusive control over trade.• To have competitive advantage.

Why Agricultural Patents are being pursued?

EXAMPLES OF BIO-PIRACY1. 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.

2. 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