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Basmati Biopiracy
566348H
Research Foundation for Science, Technology and Ecology
CONTENTS
Page
1. Introduction
1
2. Basmati and Biodiversity
2
3. Basmati and the Indian Economy
4
4. RiceTec and the Patent on Basmati
5
5. Problems and Implications of Patenting Basmati 7
6. Biopiracy
11
7. What You Can Do / How You Can Help
13
- Consumer Action
- Advocacy Action at the National Level
16
- Advocacy Action at the International Level
19
8. Conclusion
21
INTRODUCTION
Rice forms an integral part of the life of most Indians. It
has been the principal crop in several regions of India
for thousands of years. India is the world's second
largest producer of rice after China. Rice is cultivated
in over forty-two million hectares of land in India. Over
90 percent of total world production of rice is in Asia of
which 21 percent is grown in India.
Apart from being the staple food of most Indians, rice
in India has been closely associated with religious
ceremonies and festivals since time immemorial. Each
traditional variety has its own religious or cultural
significance. The different varieties of rice, the use of
different rice preparations in rituals, and the medicinal
and therapeutic properties of rice have all been
documented in various ancient Indian texts and
scriptures.
India possesses a tremendous diversity in rice varieties,
reflecting the culmination of centuries of informal
breeding and evolution by farmers of this country. The
varietal diversity of rice in India can be considered to
be the richest in the world, with the total number of
varieties estimated to be around 200,000 (Krishan and
Ghosal :3:1995).
BASMATI AND BIODIVERSITY
Basmati (Oryza sativa) is one of the most superior
varieties of rice grown in the world. Indigenous to North
India and Pakistan, this rice variety is distinct for its
unique aroma and flavour, hence the Sanskrit name
"Basmati" which means "ingrained aroma" or "queen
of aroma."
Basmati has been grown for centuries in the
subcontinent as is evident from references in ancient
texts, folklore and poetry. One of the earliest references
to Basmati according to the CSS Haryana Agricultural
University, Hissar, is made in the famous epic of Heer
Ranjha, written by the poet Varis Shah in 1766. This
naturally perfumed variety of rice has always been
treasured and possessively guarded by nobles since
time immemorial, and eagerly coveted by foreigners .
Years of research on Basmati strains by Indian and
Pakistani farmers, has resulted in a diverse range of
Basmati varieties. The superior qualities of this rice
must be recognised as predominantly the contributions
of farmers' informal breeding and innovation. There are
twenty-seven distinct documented varieties of Basmati
grown in India.
2
WELL KNOWN INDIGENOUS VARIETIES OF
BASMATI GROWN IN INDIA
State of
Origin
Name of rice
Strain
District/
Location
Uttar Pradesh Basmati Dehra Dun
Garhwal
Basmati Safed
Garhwal
Lal Basmati
Garhwal
Basmati Basar (red)
Garhwal
Mota Basmati (scented)
Garhwal
Baunya Basmati
Garhwal
Deshi Basmati
Garhwal
Hansraj Basmati
Garhwal
Basmati Basar (white)
Garhwal
Basmati D-52-26-19
Garhwal
Pusa Basmati
Ramgarh
Basmati T3
Saharanpur Sela Basmati
Basmati Pilibit(N-lO-B)
X-T
Punjab
Basmati average
Basmati (P.2-33-14)
Basmati ( P.40-40-17)
Basmati 217
Basmati superior
Basmati 3
Sela Basmati 370
Basmati T.34
Basmati T.23
Punjab
Himachal
Pradesh
Basmati (K.33-39-5)
Basmati
Basmati
Kulu Valley
Haryana
Kamal Basmati
------------
3
BASMATI AND THE INDIAN ECONOMY
India grows 650,000 tonnes of Basmati annually.
Basmati covers 10 - 15 percent of the total land area
under rice cultivation in India.
Non-Basmati and Basmati rice is exported to more than
eighty countries across the world. Non-Basmati rice
exports in 1996-97 were 1.9 million tonnes and
amounted to Rs. 18 billion ($ 450 million), while Basmati
exports were 488,700 tonnes and fetched the exchequer
Rs. 11.2 billion ($280 million). Annual Basmati exports
are between 400,000 to 500,000 tonnes. Basmati rice has
been one of the fastest growing export items from India
in recent years. The main importers of Indian Basmati
are the Middle East (65% of Basmati exports), Europe
(20%) and USA (10-15%).
At $850 a tonne, Indian Basmati is the most expensive
rice being imported by the European Union (EU)
compared to $700 a tonne for Pakistani Basmati and
$500 a tonne for Thai fragrant rice. Indian Basmati
exports to the EU in 1996-97 amounted to nearly 100,000
tonnes.
Asians and Indians in Europe and the USA are the main
consumers of Indian Basmati rice.
RICETEC INC. AND THE PATENT ON
BASMATI RICE
RiceTec is a Transnational Corporation chaired by
Prince Hans-Adam II, the ruler of Liechtenstein. Its
American subsidiary, RiceTec Inc. employs one hundred
people and has an annual turnover of US $ 10 million.
On September 2,1997, the Texas based RiceTec Inc. was
granted patent number 566348^ on Basmati rice lines
and grains. RiceTec got patent rights on Basmati rice
and grains while already trading in its brand names
such as Kasmati, Texmati and Jasmati.
This patent will allow RiceTec Inc. to sell a "new"
variety of Basmati which it claims to have developed
under the name of Basmati, in the US and abroad.
The following abstract from Patent No. 5663484, issued
by the US Patent and Trademark Office (USPTO)
demonstrates what a broad patent it is.
" The invention relates to novel rice lines and to plants
and grains of these lines and to a method for breeding
these lines. The invention also relates to a novel meansfor
determining the cooking and starch properties ofrice grains
Specifically, one aspect of the invention relates to novel
rice lines 'whose plants are semi-dioarf in stature,
substantially photoperiod insensitive and high yielding,
and produce rice grains having characteristics similar
or superior to those of good quality Basmati rice. Another
aspect of the invention relates to novel rice grains
produced for novel rice lines. The invention provides a
method for breeding these novel rice lines. "
Patent Number. 5663484 not only defines the scope of
the patent, but also includes 19 distinct and separate
claims within this one patent.
The Basmati variety for which RiceTec has claimed a
patent has been derived from Indian Basmati crossed
with semi-dwarf varieties includingindica varieties. The
patent is thus for a variety that is essentially derived from
a farmers' variety. Therefore it cannot be treated as
novel. It falsely claims a derivation as an invention.
The RiceTec's claim states that:
"Although the invention is described in detail with
reference to specific embodiments thereof, it will be
understood that variations which are "functionally
equivalent" are within the scope of this invention.
Indeed, various modifications of the invention in addition
to those shown and described herein will become apparent
to those skilled in the art from the foregoing description
and accompanying drazoings. Such modifications
are extended to fall within the scope of the
6
PROBLEMS WITH THE RICETEC PATENT ON
BASMATI RICE
1. Though the patent is for a particular variety of
Basmati rice, the clause "functional equivalents"
in the claim has widespread implications and could
be used against all traditional varieties of Basmati
(A and B in the diagram). This could severely harm
Indian Basmati growers.
traditional Basmati (farmers' variety)
A
_________________ C
Basmati 867
(patented by RiceTec)
semi-dwarf variety
2. A patent can only be issued if it meets the three
criteria of novelty, non-obviousness and utility.
Novelty implies that the innovation must be new. It
must not be part of "prior art" or existing knowledge.
Non-obviousness implies that someone familiar in
the art should not be able to achieve the same step.
The development of the 'new' variety (Basmati 867)
by RiceTec has been derived from Indian Basmati
through conventional breedi
techniques. The claims of "novelty'
and "invention" are therefore
false.
3. Iridian law forbids the patenting
of any life forms unlike US law.
7
4. The gene bank of the International Rice Research
Institute (IRRI) is maintained by the CGIAR
(Consultative Group on International Agricultural
Research), which now has an agreement with the
FAO (Food and Agriculture Organisation) of the UN.
None of the varieties held in this gene bank can be
patented. Since RiceTec used the Indian Basmati
strain from this bank, its product cannot be patented
under the terms of the agreement of which both the
US and India are members.
5. The name "Basmati" is not a generic one as RiceTec
claims, but is distinctive of the rice grown in the
Indian subcontinent. Just as champagne is unique
to France, Basmati is unique to India and Pakistan.
The RiceTec patent is for a rice variety grown under
different climatic and soil conditions, and called
Basmati. This should be against the Trade Related
Intellectual Property Rights (TRIPs) of the World
Trade Organisation (WTO), which is supposed to
protect geographic appellations.
The patent is thus a serious threat to our culture, science
and heritage, and needs to be revoked.
Legal Implications :
If Indian patent laws were in conjunction with US patent
laws, then patents like RiceTec would be applicable in
India. This is precisely what the TRIPs dispute
initiated by the US in the WTO aims at
achieving by 1999.
8
• If the US pressure forces India to implement US style
patent laws, RiceTec would have the sole right to
use the term 'Basmati' for marketing the rice
anywhere in the world.
• US case law is already establishing that once a
patent law is granted for a genetic trait (in this case
aroma), all occurrences of that trait will be an
infringement, irrespective of how they came to exist
(Shiva Vandana: 1998). This could lead to the absurd
situation in which RiceTec could claim that Indian
farmers growing Basmati were "infringing" on the
RiceTec patent.
Economic Costs to India:
o Though there is no way that Indian exporters and
growers can be prevented from conducting their
normal activities of trade, the patent will affect
exports of Basmati rice to the US by allowing the
marketing of a "pseudo Basmati" as Basmati. About
45,000 tonnes of Basmati are exported annually to
the US. The loss of these exports will have an adverse
effect on Indian exporters.
Exports to the Middle East and the EU might also
suffer as RiceTec could capture these markets with
its fake Basmati. These are non-competitive trade
barriers that would harm Indian exports.
"In the long run, India will have
severe problems in positioning
its exports", says Mr. Gurnam
Arora, President, All India
Rice Exporters Association
(AIRE A).
9
‘ r met r»:
• <•
\ aw. -• a direct appropriation of traditional
x ,xcc oi Indian l.innrrs. It reduces years of
o • • .esoatvh breeding and innovation to a
? ■ \v, .'.AU'A't patent.
\
71
•/ .went claim is interpreted to apply to ali
n:-u ;:;‘s of Basmati which were used to
.n c cp : patented variety (Basmati 867), Indian
r a Pakistani farmers could be forced to pay
:s ?o RiceTec Inc. for the use of their own seeds
II
Pl' c avehhood of 250.000 farmers growing Basmati
~ hia and Pakistan could be jeopardised by the
-~=r barriers this patent would establish.
The parent on Basmati 867 is an outright violation
hr—ars ethics, which respect agriculture and all
_ra ark condemn its patenting in any form.
H>
B I 0 F I K A C Y
What is biopiracy ?
The appropriation of indigenous knowledge by
obtaining patents on biodiversity resources in the
developing world is known as biopiracy. Years of
indigenous research and development, are reduced to
a mere product. The patenting of Basmati by RiceTec
Inc. is a classic example of biopiracy, and is part of the
norm rather than an exception. The main reason for
developing this Basmati Campaign Kit is because
biopiracy is taking the dimension of an epidemic all
over the world.
Why it needs to be stopped :
According to Dr. Vandana Shiva, biopiracy results in
the following:
1. It creates a false claim to novelty and invention, even
though the knowledge has evolved from ancient
times as part of the cultural and intellectual heritage
of the developing world.
2. It divests biological resources (germplasm) to the
monopoly control of corporations, thus depriving
local communities from the benefits of its use.
3. It creates market monopolies
and excludes the original
innovators (farmers) from
their rightful access to
local, national and global
markets.
11
The Basmati patent, a clear case of biopiracy, represents
a theft in three ways:
1. It is a theft of collective intellectual and biodiversity
heritage of Indian farmers who had evolved and bred
the Basmati varieties.
2. It is a theft from Indian traders and exporters whose
markets are being stolen by the theft of Indian
aromatic rice varieties. It is a theft of the name
"Basmati" which describes the aromatic
characteristics of the rice.
3. It involves a deception of consumers since RiceTec
Inc. is using the stolen name "Basmati" for rice
derived from Indian rice but not grown in India and
therefore not of the same quality.
Countries like the US vindicate developing nations of
pirating information from them, however, the UNDP
estimates that biological resources worth approximately
US$ 5.4 billion are stolen by the rich industrialised
countries from Third World nations every year. The US
alone accounts for nearly 60 percent of this 'loot.'
The issue of biopiracy is a very serious one. In order to
rectify the problem, a number of efforts have to be made
at both the international and national levels. Strong
legislation coupled with a commitment towards equity
are the prerequisites for any solution to be feasible in
reality.
12
WHAT YOU CAN DO /
HOW YOU CAN HELP
CONSUMER ACTION:
• Support Third World movements like 'Navdanya'
which strive to protect the farmer's right to produce
and conserve seeds. Such movements are needed
to ensure that Indian farmers continue to produce
Basmati rice. By protecting indigenous production
of Basmati rice, farmers' livelihoods and
contributions will not be lost to First World piracy.
• Urge consumers, non resident Asians and Indians
to consume only Indian and Pakistani Basmati rice.
• Boycott/afce American Basmati
• Launch a campaign to inform people of the superior
qualities of Indian Basmati rice. Advertise it as the
"real thing."
• Label Indian Basmati as "patent-free ", similar to
the way in which tuna from the US was labelled
"dolphin safe tuna" to discriminate it from Mexican
tuna, and sugar was earlier labelled "slave free."
• Use media - television, student radio, newspapers
to reach out to people and generate
awareness about the piracy of
Basmati and its implications on
Indian farmers and the Indian
iiAw,n v.
economy.
F
*
13
• Design stickers, labels and posters for cars,
supermarkets and stores.
Some samples which could be used
only
'KEAC BASMATIJ at
SUPPORT
IN1DJAK1 FARMERS
14
• Write letters to the Indian government expressing
your support on the move to revoke the Basmati
patent. Urge them to resist WTO pressure to change
patent laws.
Minister
Ministry of Agriculture
Krishi Bhavan
Dr. Rajandra Prasad Road
New Delhi -110 001
INDIA
• Write letters to the USDA (US Department of
Agriculture) and USPTO (US Patent and Trademark
Office), condemning biopiracy in general, and the
patenting of Basmati in particular. Urge them to
enforce legislation that promotes equity between the
North and South, and to take measures to stop the
practice of biopiracy. The US should be pressurised
to amend its patent laws while recognising the
needs and problems of developing nations, instead
of taking advantage of them.
Contacts:
USDA
USPTO
Dan Glickman
Secretary, Agriculture
200-A Whitten Building,
Washington DC 20250.
USA.
E-mail: agsec@usda.gov
The USPTO
Box 4
Commissioner of Patents
and Trademarks,
Washington DC 20231.
USA
15
ADVOCACY ACTION AT THE NATIONAL
LEVEL
1) Establish “sui generis” systems
Article 27(3) of the TRIPs states that, "parties shall provide
for the protection of plant varieties either by patents or by an
effective sui generis system or by any combination thereof"
"Sui generis" means self generated. National
governments should develop systems to suit their own
cultural and intellectual needs. In countries like India,
80% of the seeds still used are farmers' varieties. Hence
such sui generis legislation should recognise the
collective rights of farmers, and should therefore be an
alternative to the western, industrial style Intellectual
Property Right (IPR) regimes. Legislation should be
passed which sets up mechanisms to enforce these
ideals and ensure that indigenous knowledge holders
are not victimised.
2) Farmers’ Rights Law
Farmers' Rights are the only means to assert our national
sovereign rights to our indigenous innovation. This
indigenous innovation is based on collective,
cumulative processes, and hence on collective
intellectual rights. Since the only way to prevent
biopiracy of our agricultural biodiversity is
by preventing the patenting of varieties
\
derived from them, we need to
•
develop a strong legal system of
T 1
Farmers' Rights for protection of
x
farmers' varieties.
16
3) National Biodiversity Act
The Indian government should develop and enforce a
National Biodiversity Act which builds on the principles
of sovereignty and protection of indigenous knowledge
as stressed by the Convention on Biological Diversity
(CBD). The principle of sovereignty should be based
on co-ownership of biodiversity by local communities,
and the nation as a whole. The State should hold
biodiversity in public trust for the people of India but
not interfere in their daily lives, nor police them in their
utilisation of biodiversity for survival. The drafts of the
Act must be revised to prevent free access of
bioprospectors whose primary motive is profit.
Once this legislation comes into place, India can take
foreign companies to court under the CBD, which
confers biodiversity ownership rights to national
governments.
4) National Patent Laws
There is an impending need to strengthen Indian patent
laws, which do not have any provisions to combat
biopiracy. All life forms should be exempt from
patenting. India should not yield to US pressure to
change laws according to their demands. We must be
assertive and develop systems, which safeguard our
ethical and cultural values. Articles 27.2 and 27.3
of the TRIPs that specify exclusions to
patenting of life forms should be
stressed while formulating strong
tjk j
domestic legislation.
17
5) Non co-operation : Seed Satyagraha
The motto of the Swadeshi Satyagraha launched by
Gandhiji during the freedom struggle was 'non co
operation with the British.' In case none of the above
legal alternatives to prevent biopiracy work, the Seed
Satyagraha, should be launched, which proclaims: 'non
co-operation with IPR regimes and Transnational
Corporations aimed at plundering Third World
biodiversity.'
s.o.s.
Save Our.
Seeds !
18
ADVOCACY ACTION AT THE
INTERNATIONAL LEVEL
1) TRIPs and Intellectual Property Right (IPR)
Regimes of the WTO
The problem of biopiracy is not merely national, but
has international origins too. The loopholes in
international agreements, and their distinct bias towards
the developed nations, facilitate the marginalisation of
the Third World.
The TRIPs of the WTO are aimed at facilitating free trade,
regardless of its costs to humanity. Under the garb of
promoting free trade, developed countries get away with
a number of atrocities against the developing nations.
Such free trade treaties thus significantly discriminate
against poor countries. The TRIPs regime calls for a
system of uniform patent laws by 1999, discounting the
differences in ethics and value systems of Third World
nations, where life is sacred and exempt from patenting.
The TRIPs agreement has provisions for "effective sui
generis systems" as an alternative to patents. Since
these systems are not defined, developing nations
should be free to interpret them as indigenous methods
of protection of plant variety.
A uniform IPR regime, which the WTO would
like to establish, would exclude the
freedom of farmers to freely exchange
and grow seeds. The WTO needs to
be amended in order to eliminate
the prejudice against holders of
indigenous knowledge.
19
,
w
>
(
2) The Convention on Biological Diversity (CBD)
The CBD is an international treaty which aims at
protecting biodiversity, recognising sovereignty of
nations, and promoting equity. It came into force in
1992 at the Earth Summit at Rio. It is legally binding
on all signatories. Measures should be taken by all
contracting parties to uphold the principles
embodied in this treaty. The CBD should supersede
all trade treaties with the goal of protecting human
health and the environment. The true purpose of the
CBD needs to be recognised. National diversity laws
of some countries have, under pressure from the
developed world, become mere access laws, which
promote their access to biodiversity of the Third
World. The CBD was developed to protect the
biodiversity in the Third World, and should be used
effectively to counter appropriation of biological
resources.
3) FAO International Undertaking on Plant
Genetic Resources (March 198>7)
This undertaking is an initiative of the FAO to safeguard
plant varieties and the rights of farmers. It defines
Farmers' Rights as "rights arising from the past, present
and future contributions of farmers in conserving,
improving and making available Plant Genetic
Resources, particularly those in the centres of
origin and diversity."
bL « '•
d’
\
Attempts should be made to uphold the
principles of this undertaking and to
establish legal mechanisms to
safeguard the rights of farmers.
20
4) US Patent Act
There are certain distortions in the US law which
facilitate the patenting process for companies. One such
distortion is the interpretation of 'prior art.' It permits
patents to be filed on discoveries in the US, despite the
fact that identical ones may already be existing and in
use, in other parts of the world. Section 102 of the US
Patent law does not state a general definition of 'prior
art' but a very narrow rule bound method to be used
by low level patent examiners to determine which
materials will defeat a patent application by violation
of the novelty and non-obviousness criteria.
Prior foreign knowledge, use, and invention are all
excluded from the 'prior art' related to US patent
applications. Unless Section 102 of the US patent law is
amended, new examples of biopiracy will continue to
occur.
CONCLUSION
Basmati is just one example of the increasing number
of biopiracy cases in India. As responsible citizens, it is
our duty to act, speak up and initiate change. We must
strive to prevent further human rights violations of this
nature. It is time to wake up and take action, or else the
silent majority will soon be reduced to the silenced
majority.
References:
-
RFSTE, Dossier on Patenting of Basmati by RiceTec Inc., 1998.
-
Krishnan Omkar, Ghosal Anjali, Rice, Navdanya, 1995.
Shiva Vandana, Biopiracy, 1997.
21
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_________________
"The Basmati patent once again makes clear
that the US patent system facilitates biopiracy
and the WTO protects this biopiracy."
Dr. Vandana Shiva, Director, RFSTE.
"The tussle is not just between Basmati and Rice
Tec Inc. It is between globalisation and national
sovereignty. And it is a much bigger issue than
we think, and basically a political rather than
economic issue."
Jai Dubashi
Economist
"We really do not know how many of our filly
developed hybrids and quality seeds are being
utilised now by other countries."
Dr. Mangala Rai, Deputy Director-General,
Indian Council of Agricultural Research (ICAR).
"If both product and process patents are
introduced in agriculture', it will mean a
scientific apartheid for the Third World.
Dr. Ismail Serageldin, Chairman, CGIAR.
Position: 488 (8 views)