The Basmati Victory Contrary to misinformation in some sections of the media, India did not loose the Basmati Patent Challenge. No new patents have been given to RiceTec, and no new right has been given to market their varieties as equivalent to or superior to Basmati. RiceTec has been forced to give up its far-reaching and false claims to having invented a very broad range of Basmati rice lines and plants.
We have won the Basmati biopiracy battle, though the war for defense of farmers' rights, indigenous knowledge and biodiversity still needs to be won. And this partial victory has been based more on citizens' actions than government action. As a result of a worldwide citizen campaign against RiceTec Basmati patents, on Aug 14th 2001 the U.S. Patent and Trademark Office struck down large sections of the Basmati patent. The generic title of the RiceTec patent No. 5663484, which earlier referred to Basmati rice lines. The sweeping and false claims of RiceTec having `invented', traits of rice seeds and plants including plant height, grain length, aroma which are characteristics found in our traditional Basmati varieties.
The collective cumulative innovation of our farmers was thus being pirated by a Texas based company. Claims to general methods of breeding which was also piracy of traditional breeding done by farmers and our scientists (Of the 20 original claims only three narrow ones survive) When RiceTec was granted the 20 far reaching Basmati claims, the Government of India (GOI) did not challenge this outrageous biopiracy. We had to file a PIL and get the Supreme Court to ask the government to take legal action in the USPTO. When the Government did go to USPTO it challenged only 3 claims related to basmati grain, and hence to basmati exports. It did not challenge claims related to basmati seeds and plants, and hence to farmers' rights & traditional knowledge even though the research done by the CFTRI (Central Food Technology Research Institute, in Mysore) and ICAR established that the basmati seed claims covered our traditional varieties.
In fact on 25 Jan 2001, the GOI represented by APEDA told the Supreme Court they were satisfied with the withdrawal of 4 claims by RiceTec and did not intend to fight the Basmati patents any further because exporters' interests had been defended. There was no attempt to defend farmers' rights. Even in the debate in Parliament, the Basmati issue has been narrowed to the issue of exports, and detracted from the large issue of biopiracy, traditional knowledge and farmers rights. This issue can no longer be evaded because the surviving claims to Bas 867, RT 1117 and RT 1121 have been granted on the basis that farmers breeding does not count, but when farmers' varieties are used to derive varieties with the valuable characteristics such as aroma already evolved by farmers, it is treated as an invention and given patent protection.
These rice varieties have used Indian and Pakistani varieties. When the government failed once again to defend our basmati biodiversity and indigenous knowledge, the Research Foundation along with other citizens groups launched a global campaign against RiceTec's Basmati patents. Organisations and individuals bombarded the USPTO with protest letters, demanding the US Patent Office not to protect biopirates. The fact that USPTO struck down 15 claims out of 20 in spite of GOI asking for withdrawal of only 3 and the U.S. Government insisting that they would never drop the generic claim to basmati shows that once again people proved more powerful than corporations and governments. The Basmati victory is the Seattle in the domain of Biodiversity and TRIPs. Need to challenge TRIPS The next step of the Basmati Battle is about the defense of indigenous innovation and the recognition of the contribution of our biodiversity. These issues form the core of concerns in pending Bills before parliament. These issues of ownership of biodiversity & traditional knowledge that have been the subject of intense negotiations in the Seed Wars at the Convention on Biological Diversity.
The Recently concluded International Undertaking on Plant Genetic Resource (IU) establishes :- A multilateral system that sets common rules for access to, and the sharing of benefits from crop genetic resources. Financial benefits from the use of IU governed genetic resources will be shared through a compulsory mechanism that draws on revenues generated from their commercialisation. As in other treaties related to sovereign rights to Biodiversity, the global seed industry and the U.S. continue to demand the right to claim patents over any genetic resources of food crops that they modify, no matter how trivially and superficially. The battle over biodiversity, biopiracy and IPRs is also at the heart of the demand of Third World countries for reform of TRIPs rather than its implementation. Southern countries want to remove patentability of living resources from TRIPs, want the recognition of traditional knowledge and want Biopiracy made illegal. This call for TRIPs reform should also be India's call at the W.T.O. Ministerial in Doha, using the Basmati case as a launching pad just as South Africa and Brazil have put the global pharmaceuticals on the defensive on the issue of AIDS drugs. Instead of implementing TRIPs, India should focus on TRIPs reforms. The government has introduced these laws which would promote basmati style biopiracy on our land.
The Biodiversity Bill which should have regulated access but has offered corporations free access to seeds, crops and farmers varieties. The Plant Variety (Seed) Bill which creates seed monopolies and does not have adequate defense of farmers rights and freedoms. The Patent Bill which would allow RiceTec style biopiracy, patents to be granted to corporations, under Indian law. Some sections among the Indian elite argue that rapid introduction of perverse, western style IPR laws, which promote piracy of traditional knowledge, will stop this piracy. This is however false. A patent is an exclusive right, which gives the patent holder a monopoly to make, use, distribute, sell the patented product.
If such monopolies are granted to corporations through Indian law, Indian cultures will over time be denied the free use of seeds, medicinal plants, and indigenous knowledge. Every day items like Haldi, Neem, Karela will go beyond our reach for food and medicine. Parliament needs to revisit and radically change these draft acts and give instruction to Government to negotiate changes in TRIPs, since the perversions in the Biodiversity Bill, Seed Bill and Patent Bill arise from the hurry to implement TRIPs. Changes in TRIPs and the above three laws is the way to protect our indigenous innovations, traditional knowledge and biodiversity.
The blind alley of Geographical Indicators There is a lobby working in India which would like to take the attention of Parliament and the Public away from the Patent Laws, Seed Laws, and Biodiversity Laws and take the country down the blind alley of Geographical Indicators (GI) for dealing with Biopiracy. The GI Law has already been passed. However, GIs are inadequate for defense of farmers' rights and our rights to our own traditional knowledge and biodiversity for a number of reasons. GIs are relevant to Basmati and Darjeeling tea. But Biopiracy is not restricted to Basmati. Karela, jamun, tamarind, haldi, neem, ginger, anar, pepper, amla have all been patented. No GIs would work to prevent the biopiracy of the hundreds of medicinal plants and crops. To prevent the rampant biopiracy of our plants and knowledge we need a genuine `sui generis' system, which protects the collective, cumulative innovations, embodied in traditional knowledge as a societal common property. The 15 challenges to RiceTec using Basmati as a trademark in different countries have been fought and won not through geographical indicators as trademark issues. The argument that without GI we cannot reverse piracy of markets and exports is therefore not true.
This trademark challenge still needs to be made in the USPTO, using the victory in the Patent Case on RiceTec selling Texmati & Kasmati as Basmati. GIs address only exports, of a small number of commodities, not the rights of our farmers to use, save, exchange, and improve their seeds for domestic production or protection of our indigenous knowledge. WTO has so far blocked India's attempts to have Basmati and Darjeeling tea included in Geographical Indicators. While protection is granted for Wines and Spirits, there is no protection for our crops and Ayurvedic Medicines. Domestic laws on GIs are toothless without appropriate Amendments in TRIPs. GIs could work for protecting a few export commodities like, Alphonso mangoes, Darjeeling Tea and Basmati Rice. They have no relevance in the deeper conflicts and contests relating to patenting of life forms and piracy of our traditional knowledge in agriculture and medicine.
For this, the patent paradigm needs change. WTO made patent laws global. They need to be brought back to national sovereign-space. Patents need limits and boundaries. Life forms and traditional knowledge cannot be treated as inventions. They need to be excluded from patentability, in India and every other country. Alternative `sui generis' systems need to be evolved that suit the protection of biodiversity and indigenous knowledge. Patents on our crops are a new form of biocolonialism. They need to be fought by changing patent and IPR laws, and TRIPs. Cases like the Basmati and Neem victory highlight what is at stake. But the place to stop biopiracy is where it happens, through perverse IPR systems. Stopping biopiracy demands shaping the appropriate laws for seeds, biodiversity and patents, nationally and internationally for the defense of our biological and intellectual wealth.
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Copyright, Vandana Shiva, 2001. For fair use only.