An analysis of the real issues involved in the controversial case of the Basmati Rice Patents from various perspectives: commercial, legal and general. Point-to-point explanation of widely held misconceptions arising from limited awareness.
In recent times, several newspapers ran articles and editorials relating to a patent obtained at the US Patent Office by a Texas based US company Rice-Tec. These articles and editorials included comments attributed to 'leading' scientists, bureaucrats and officials in various patent offices, patent experts and even consular staff. These articles have created certain beliefs in the minds of readers. We write this article in an attempt to set right some of the 'media-created' misconceptions. We have listed these misconceptions under the headings of 'commercial' and 'legal' to deal with them individually.
Commercial Misconceptions
- Rice-Tec has patented the name 'BASMATI' for rice at the US Patent Office
- A name or Trade Mark cannot be patented under any law. This misconception has arisen because the term PATENT is loosely used in the various articles. A name or word can only be registered as a Trade Mark.
- A word appearing in the title of a patent application or granted patent does not confer any monopoly right. A cursory reading of the patent document itself shows that Rice-Tec has acknowledged that the BASMATI quality of rice, available in India and Pakistan, is the best aromatic rice available in the world and that they have attempted to devise a method by which a rice line available in the US is modified to have characteristics of the BASMATI line of rice.
- As a result of patenting the name 'BASMATI,' Indian manufacturers, growers and exporters will not be able to export, sell in India or even grow 'BASMATI' rice. The Indian consumer will be forced to eat only Rice-Tec BASMATI rice. Indian exports of BASMATI rice to Europe and particularly America will be affected
- These misconceptions arise because of the absolute lack of understanding of the patenting process in India and/or the US. A patent does not confer a positive right. In that sense a patent does not give an absolute right to the holder of a patent that he/she alone can make, grow or sell what has been patented. A patent is a negative right. The grant of a patent enables the holder of a patent to prevent any other person from making, growing or selling a product in accordance with a process which is claimed in the specification. The claims of a patent are the only portion of the specification that mark out the prohibited territory. A reading of the claims of this patent shows that the claims provide a method of breeding a new type of rice grain and line and claim a right to the new rice grain or line produced in accordance with this method.
- Another claim relates to a method of predicting the cooking and starch properties of the rice grain by determining the 'Starch Index' and thereby identifying grains that can be cooked to the firmness of traditional BASMATI rice preparations and further using the method for selecting desirable segregants in rice breeding programs. In fact, from a cursory reading of the claims it is once again clear that Rice-Tec clearly acknowledges that the quality standard of Basmati Rice is one that is worthy of emulation and is therefore well known. In no way will an Indian manufacturer, grower or exporter of BASMATI rice be prevented from conducting his/her traditional activity as a result of this patent.
Legal Misconceptions
- Rice-Tec was able to patent 'BASMATI' (name and process) because of a defect in the Indian Patent system or laxity or lapses on the part of the Indian Government
- A patent application is processed only by the system of the country in which the patent application is filed. Thus, if a patent application is filed in India, it will be processed and granted according to the system prevalent in India as formulated by the current Patent Law in India. Similarly, a patent application filed at the US patent office will be processed and granted in accordance with US patent laws. The Indian patent laws and system or the Indian Government have no bearing on either the processing or the grant of a patent in the US or vice versa. If an 'unworthy' patent application is accepted in the US, the fault lies ONLY with the US Patent system and no fault can be attributed to the Indian Patent System, Patent Laws or the Indian Government. The existence or nonexistence of an Indian Patent System does not in any way prevent an Indian inventor from obtaining a patent for his/her invention in the US or stopping an Indian Company or Association from protecting its Trade Mark, brand name or appellation rights in the US or anywhere else in the world. It is a little known fact in India that the US Patent system has no provision for objecting to or opposing the grant of a patent application. The Indian Patent System has well defined provisions for opposition. Just as the US Government is making vociferous attempts to introduce changes in the Indian Patent Laws, should we not insist on changes in the US Laws such as asking them to introduce provisions for opposition?
- The Indian Government awoke only belatedly to take action and should have objected much earlier to the grant of the patent to Rice-Tec
- There are no provisions for opposition before grant at the US Patent Office. All interested parties are mere spectators. Knowledge of what is being patented has hitherto been made available only after a patent application is granted. The Indian Government could do nothing to prevent the grant of the patent to Rice-Tec.
- It is the duty of the Indian Government to object to such patents being obtained at the US Patent Office.
- The Indian Government should lodge protests at the World Trade Organisation against Rice-Tec and the US Patent Office for the grant of this Patent. : False
- There are no experts in India that are in a position to deal with opposing/obtaining patents in the US and therefore India does not have the 'legal muscle' to prevent the grant of such patents : False
- There are several competent experts in India who are in a position to assist in obtaining patents in the US and other countries and in opposing foreign patent applications. It is however true that both procedures are very expensive.
- That the whole controversy would not have arisen if the Indian Government had amended its Patent Laws or introduced laws to protect names (marks) like Basmati, Darjeeling, Bikaner etc. : False
- Once again the media are quick to blame the Indian Government. In the first place, there are adequate laws in India to protect against the misuse of marks. In India the Trade and Merchandise Marks Act, 1958 provides adequate criminal remedies against any person wrongly describing his/her product as Basmati Rice, or Darjeeling Tea or Bikaner Sev. The punishment is a jail sentence of 3 years and fine. In addition, there are enough precedents for taking action under the Law of Passing Off for taking action against such misuse.
- However, it must be pointed out that any law however strong or weak will have no bearing on the use or protection of a name or Trade Mark in the US or any other foreign country. If any person is able to get away with protecting a well-known Indian trade description or trade mark in the US, the fault lies with the US trade mark legislation and ignorance of the US Trade Mark Examiners.
- That in general the Indian patent laws are weak and need considerable modification to suit the interests of Indian inventors who wish to protect their inventions in the US or other countries : False
- In India statistics available for the year 1995 show that 1545 patent applications were filed by Indian inventors and corporations or Indian Government organisations, whereas 5021 applications were filed by foreigners. In the same year, 415 patent applications were granted to Indian applicants. Any amendment in the Patent Laws is not likely to increase the filing ratio in favour of Indian inventors. The aim of any law within a country is to protect the interests of its own nationals and corporations. Outside agencies are clamouring not for a STRONGER PATENT LAW but for a patent law that will assist such agencies in enjoying certain monopolies in this country to the detriment of Indian residents.
General Misconceptions
- That names can be patented
- That there is such a thing as a WORLD PATENT
- That a patent obtained in the US is effective in India or vice versa
- That after signing of the WTO agreement, foreign patents are applicable in India or that a patent application filed in India has any effect outside India
- That the absence of a strong patent law is hurting the Indian Industry
- That because of a weak patenting system, Indian inventors and research are suffering, and technology and research created in India is not protectable internationally.
- That Indian inventors are unable to obtain patents and therefore commercialise their inventions in the US and other markets
True facts in the Basmati Case
- In July 1994, Rice-Tec of Alvin, Texas filed a patent application for an invention relating to novel rice lines, plants and grains and to a method of breeding these lines. The title of the accepted patent read 'BASMATI RICE LINES AND GRAINS'. This patent application was accepted/ granted on Sept 2, 1997 under number 5,663,484.
- Besides, Rice Tec also filed for registration of Trade Marks such as TEXMATI and TEXMATI LITE. These Trade Mark applications were also registered. There is no registration for the word BASMATI as a Trade Mark.
