The Battle For Basmati

"In the banquet following our union," Ranjha tells Heer, "we'll cook and serve the basmati rice from the Himalayan region."—Sufi poet Bulle Shah's famous love epic

IT started as a storm in a teacup but is now threatening to boil over. Austin, Texas-based RiceTec Inc. has been granted a patent by the US government for a new rice strain which is supposedly similar or even superior to traditional Indian basmati, thereby unleashing nationwide hysteria. Does this mean Indian farmers can't sell their basmati in the US anymore? Does this mean an eventual farewell to global markets? Does this mean we cannot sell our produce as basmati in our own country or even grow its seeds? Is this a major biopiracy move by the US? Finally, does it mean our favourite biryani is going to disappear from our dining tables?

The answer to these questions: No. And the hysteria is quite unwarranted since India is marshalling facts and evidence to challenge the grant of this patent and establish the country's right to this variety of superior, aromatic rice, defined by the Oxford Dictionary as early as in the 19th century as "a long-grain superior rice of Indian origin". But while there are more myths than facts doing the rounds on the issue, it's also true that India has been so lethargic in protecting its natural resources that it faces many such infringement cases in the future.

 While France has made sure that no wine made outside the district of Champagne can be called champagne, while the world has accepted that Scotch whisky has to be distilled in Scotland, Jaffa oranges grown in Israel and Colombian coffee in Colombia, India has been so tardy that Kenya and Sri Lanka today produce more 'Darjeeling tea' than Darjeeling does. And now, basmati.

Says Dr R.A. Mashelkar, DG, Council for Scientific and Industrial Research (CSIR), which files the highest number of patents each year in India: "The US patent serves as a good reminder that we've badly slipped up on homework. We have to put our own protection legislation in place." Says noted patent advocate Praveen Anand: "It's imperative that India get the name 'basmati' registered in the US and obtain a patent for it."  real issues.

Myth 1: India's rice exports to dry up.First, let's separate myths from India exports about half a million tonnes of basmati, a fraction of its total rice exports, 10 per cent of which goes to the US. But value-wise, basmati commands almost three-fourths of total exports of Rs 1,200 crore. But a basmati patent by the US will have long-term impact on India's trade. For one, India and the US are competitors for the second place among rice exporting nations. For another, US caters to the premium market offering the costliest long-grain non-basmati varieties. And it is increasing its presence in the Gulf, our biggest market. The controversial US patent does pose a confusion of identity in the minds of the consumers in the Gulf and other Indian markets.

This is clear from the fact that India, specifically Agriculture Products Export Development Authority (APEDA) under the commerce ministry and other private exporters, are already fighting 10 cases over basmati rice. Of these, India has won one; in Greece. The same Texan firm has been barred from registering its produce under the trademarks Texmati, Kasmati and Jasmati. The other cases are pending settlement, including one in the UK where India is likely to get a favourable verdict.

Myth 2: India to lose all rights to producing and selling basmati rice and seed. Certainly not. But the US has a long history of protecting farmers' rights and agricultural products—it put into place a protection mechanism for plant and seed varieties in the 1930s as opposed to most countries which tightened their laws post-World Trade Organisation (WTO). It is also a signatory to the Union for Protection of New Plant Varieties (UPOV), which accords complete coverage to inventors and breeders. The US patent no 5663484 granted on September 2, 1997 to Ricetec on "Basmati rice lines and grains", covering both product and process, is quite exhaustive. RiceTec makes a total of 20 claims which covers the plant, grain, breeding, cooking maturity and seeds. In sum, they pertain to "novel rice lines whose plants can...produce rice grains having characteristics similar or superior to those of good quality basmati rice."

Put simply, Ricetec claims that it has invented hybrid rice lines from one basmati parent which have the unique basmati properties like increase in length, aroma, cooking firmness and separateness. More, it also has reduced starch content which cuts down breakage of grains and imparts better cooking and can be grown in American regions even with inadequate light. If true, this is definitely an improvement over the basmati grown in the sub-Himalayan region extending from eastern Pakistan to western UP. In fact, as Jyoti Sagar, partner, Kumaran and Sagar, the law firm locked in the legal battle with RiceTec, points out, "The patent talks about a certain range of rice grains which can include many Indian or Pakistani varieties, perhaps leading to probable banning of imports of such varieties into the US."

 Says trade expert Dr Bibek Debroy: "If Ric-eTec can prove that it's invented a new variety of rice, there's nothing we can do. The issue is whether this novel rice can be patented as basmati." Explains Mashelkar: "A patent is granted on three grounds: novelty, non-obviousness and usefulness. We have set up a task force with representatives from scientific organisations to find out whether we have a past history of any of the varieties claimed as novel by RiceTec. If we do, we can ask for a re-examination of the patent." CSIR's expertise lies in the fact that it successfully contested the award of a patent to the University of Mississippi Medical

Centre, US, on turmeric powder as a wound-healer and won it two years after the grant of the patent. Whereas earlier Indian claims against the neem patents in the US had not even been entertained by the US Patents Office. The turmeric case was won on the evidence of traditional Indian knowledge bases which holds only partly true in the case of basmati.

Myth 3: Is US really the frightening biopirate? Probably yes. Argues Jyoti Sagar: "The Grain and Feed Trading Association of Europe recognises basmati as a produce of India and Pakistan. Saudi Arabia, the largest importer of rice, has a law as per which, for the basmati rice to be authentic, it has to be grown in the sub-Himalayan region. RiceTec is just trying to copy the product and passing it off as Indian basmati to mislead the consumers and popularise their product." Adds environmentalist Vandana Shiva: "The invention is based on 'the surprising discovery that certain basmati plant and grain characteristics and aspects of the growing environment... are not critical to perceived Basmati product quality by consumers'. So what RiceTec is saying is that the invention has the capacity to fool the consumer that there is no difference between spurious and real basmati. Therefore the theft involved here is of the collective individual and biodiversity heritage of Indian farmers who have evolved and bred basmati varieties."

 Ironically, Ricetec has been doing this for 20 years now, and there's no gainsaying that it will soon call its product Vasmati, the closest one can get. Says Jyoti Sagar: "The US is talking of copyright and patent infringement by third world countries even as a US company has been cheating the third world for decades."

 Says Anand: "If basmati is being used descriptively in the patent, and not commercially, there's nothing wrong with the patent." On the other hand, RiceTec president Robin Andrews has claimed that Basmati is a generic name and the company has not used it as a brand name. "The reason that we patented it is to prevent other firms for using our seeds," he said. Logically, this argument can extend to Indian farmers too as, according to Indian Council for Agricultural Research (ICAR) sources, 70 per cent of the seeds used by them are from the unorganised market and of non-ICAR origin.

But if Indian exporters stand to lose out in the long-term and if US is actually a biopirate, India has nobody to blame but itself by being tardy in enacting laws to protect its interests. Under Trade Related Intellectual Property Rights (TRIPs) agreement, the laws on biodiversity, plants and micro-organisms must be ready by 1999 end. Which is why India cannot take such cases to the six-member WTO dispute settlement panel where India is already under fire for several lapses like child labour and unfair trade practices.

 The Indian bills on biodiversity and seeds and plant varieties are ready but yet to be taken up by Parliament and the geographical indication bill—which will give basmati the protection that Champagne and Scotch enjoy—is still being drafted by the commerce ministry. Our own patents law is feeble, and India does not have a patent or trademark registered for basmati in any country where it sells the rice.

Also, Mashelkar says the entire issue might boil down to a diplomatic problem as the RiceTec's parent variety is perceived to be a Pakistani grain, though Sagar claims that the specificity of the region is adequate evidence. And as the country gets ready to fight another protracted legal battle, the long-term loss of the country's physical and genetic resources may soon outweigh basmati trade gains.