Protecting Asia's most valuable resource

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Date: 24 December 2001
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GRAIN | 24 December 2001 | Seedling - December 2001

 

GRAIN

www.grain.org/publications/seed-01-12-3-en.cfm

Rice is life in the Asian region, and the struggle for retaining control over rice is the struggle for life itself. Little wonder that the recent cases of biopiracy of the region's famed Basmati and Jasmine rices have given rise to strong reactions from citizens and governments alike. This article discusses the implications of recent developments in relation to the US company RiceTec's patent claims on Basmati rice. It also draws attention to a more recent case of attempted biopiracy of Thailand's prized Jasmine rice.

In September 1997, the US Patent and Trademark Office (US PTO) granted a patent (US Patent No.5663484) to a Texas-based company RiceTec Inc. for "Basmati Rice Lines and Grains". The original patent application was based on 20 claims of novelty and inventiveness. For the last four years, the patent has been fought by NGOs and the Indian government in India and beyond. They have argued that the US PTO should not have allowed the patent because the rice lines in question fail to fulfill the requirements of inventiveness and novelty. They have contested that this is a clear case of biopiracy, and that the patent completely ignores the years of intellectual inputs of South Asian farmers engaged in the traditional breeding of Basmati Rice.

The patent application itself is somewhat contradictory in its statements about what Basmati rice really is (see box). RiceTec actually seems less clear than the US PTO on what characteristics are really required to be called "Basmati". In addition to questions about whether RiceTec can be said to have 'invented' Basmati, this case has raised a lot of questions and emotions around Basmati's link to regional and cultural identities.

When is Basmati not Basmati?

RiceTec's original patent application states that "The present invention makes possible the production of high quality, higher yielding, Basmati rice worldwide. It is based, among other things, on the surprising discovery that certain Basmati plant and grain characteristics and aspects of the growing environment for traditional Basmati rice lines are not critical to perceived Basmati product quality and that classical plant breeding methods can be used to combine, in novel rice lines, the desirable grain traits of Basmati varieties with the desirable plant and grain traits of semi-dwarf, long grain varieties.

However, in the summary in the same application there are portions that are tantamount to an admission that real Basmati is from India and Pakistan: "…even though some call the new varieties Basmati rice, the new varieties more properly should be described as Basmati substitute or quasi Basmati rice. The limited success in improving the versatility and productivity of Basmati rice lines supports the belief in consumer, trade and scientific circles that authentic Basmati rice can only be obtained from the northern regions of India and Pakistan due to the unique and complex combination of environment, soil, climate, sowing practices and the genetics of the Basmati varieties".

After pressure from NGOs (who filed a case in the Supreme Court of India against it), the Indian Government issued a limited challenge to the patent. This "Request for Reexamination" was filed in the US PTO in June 2000 against claim numbers 15, 16 & 17. Citizen groups and NGOs criticised this reaction as being weak and inadequate. They argued that the issue of farmers' rights was ignored and the challenge was motivated merely by the potential loss of markets. They argued that the challenge should demand the revocation of the whole patent.

In response to the challenge, RiceTec withdrew 4 claims (numbers 4, 15, 16 & 17) including the 3 claims challenged by the Indian government. Then the US PTO opened up the entire patent for reexamination, (partly in response to a global letter campaign by citizens demanding that the US PTO cancel all 20 claims). In March 2001, the US PTO expressed its intention to reject all but three of the surviving 16 claims on grounds of "prior art", giving the company until May 2001 to file a response. RiceTec did respond, but failed to convince the PTO to change its mind. In August 2001 the US PTO only allowed the patent with five claims so that the only surviving claims as of date are numbers 8, 9 and 11 and their dependent claims numbers 12 and 13. The title of RiceTec's "invention" was also changed from "Basmati Rice Lines and Grains" to "Rice Lines Bas867, RT1117, RT1121." This restricts the claims to specific breeding lines created by RiceTec, and means that the company cannot now claim the unique qualities of Basmati nor the unique name "Basmati".

In India, as in other parts of Asia, there have been mixed reactions to this outcome. On one hand there is a sense of victory in that RiceTec cannot claim to be growing and marketing traditional Basmati Rice. There is also satisfaction that a large number of claims forming the original patent application have been rejected. On the other hand, the fact that the patent has not been fully revoked is still a disappointment. The US PTO is being seen as an institution legalising biopiracy and against identifying and rewarding genuine inventiveness and novelty. There is concern that this may set a precedent for other biopiracy cases. Also troublesome is the fact that even with this pruned patent, RiceTec can claim ownership of rice lines developed from rice germplasm originating from India and Pakistan. By virtue of its patent, the company has exclusive rights to the three 'new' rice plants it has 'invented' and its seeds can, thanks to the US Federal Trade Commission (FTC) ruling described below, still be sold under the name "Basmati".

Civil society groups and activists have also taken other courses of action. A Citizen Petition was filed in 2000 at the US Department of Agriculture (USDA), seeking amendment of the US Standards on Rice. It suggests that the word "Basmati" should only be applied to the long grain rice grown in India and Pakistan. Similar revisions were suggested for the use of the word "Jasmine" in relation to long grain rice grown in Thailand.

A Citizen Petition was also filed at the FTC with a request that the Commission prevent US-grown rice from being advertised or otherwise represented using the word "Basmati" and/or "Jasmine". The petition argues that RiceTec is knowingly misleading the public by using the name and tradition of these unique and extraordinary rices and attaching them to different and inferior products. But in May 2001 the FTC ruled that the terms "Basmati " and "Jasmine" are "generic" and could thus be applied to rice bred in the US, or for that matter anywhere. This means that the US does not consider Basmati or Jasmine as specific to a region. Some other rice-importing countries like the UK and Saudi Arabia do have specific trade and labeling regulations that only permit Basmati Rice from India and Pakistan. Due to the disproportionate influence the US has in international affairs, such a policy decision could have serious consequences, affecting international trade rules such as those governed by the World Trade Organisation. The US' stance also makes a mockery of the Convention on Biological Diversity and the sovereign rights countries are supposed to have in relation to their genetic resources.

Jasmine rice raises tensions in Thailand

In Thailand the rice controversy recently reached a pitch when news of the Florida-based plant geneticist Dr. Chris Deren's project to develop a US version of Thailand's famed Jasmine rice hit the spotlight in late September. Deren's experiment is a part of the "Stepwise Programme for Improving Jasmine Rice for the US", so that the Thai rice can be "made in USA."

Deren repeatedly states that he "legally" obtained the seeds of the original strain of Jasmine rice, Khao Dok Mali (KDM) 105, from the Philippines-based International Rice Research Institute (IRRI) through the US Department of Agriculture. But no Material Transfer Agreement (MTA) was drawn up or signed in that process, despite international obligations on IRRI to enforce this. According to IRRI, in January 1995 it had shared a sample of KDM 105 with Dr. Neil Rutger of the USDA's Dale Bumpers Rice Research Center, a publicly funded institution in Arkansas, USA. On his own initiative, Rutger further passed on the Jasmine rice sample to Deren in Florida.

IRRI negotiated and signed a Trusteeship Agreement with the UN Food and Agriculture Organisation (FAO) in October 1994. Under the agreement, IRRI was granted legal trusteeship over genetic resources it maintains in its genebank facilities and was prohibited to claim intellectual property rights on any "in trust" germplasm. Further IRRI has the responsibility to keep its genebank materials - some 90,000 accessions developed mainly by Asian farmers - in good health and free from intellectual property restrictions. In the case of KDM 105, the trusteeship arrangement proved meaningless. IRRI did not instruct Rutger to refrain from claiming intellectual property rights on the material. Nor did IRRI instruct Rutger to pass the same commitment on to third parties such as Deren. To add insult to injury, IRRI did not inform Thailand - the country of origin of the seeds - that the transfer was taking place.

This episode has triggered a loud outcry in Thailand. Laï Lerngram, a small organic farmer from the Thai province of Surin summarises the views of many Thai citizens: "Since our ancestors began to grow Jasmine rice, it has belonged to Thai farmers, and Thai village communities. Nobody, not anyone, can claim ownership or assume exclusive rights. The patenting of Jasmine rice or the misuse of its name is a shameless theft towards us, the small Thai farmers, and a violation of our most basic rights."

People's movements, farmers organisations and NGOs in Thailand, across Asia and even internationally have been mobilising information and protest campaigns against Deren, against IRRI and against the systematic undermining of developing countries' rights to control and benefit from their agricultural biodiversity. A Jasmine Rice Action Group has been formed to take the issue forward in Thailand. According to Witoon Lianchamroon, one of the group's founders, "The group's actions will include mounting a campaign to boycott all US products, condemning its scientists and the US Department of Agriculture … and … forging alliances with other countries in the sphere of international agreements related to intellectual property rights."

The Thai government is responding actively to the peoples' campaigns. It is hiring US lawyers to initiate a lawsuit in a US court to pre-empt any move to patent new rice varieties developed from Thailand's KDM 105. The Thai Ministry of Commerce may sue the US Department of Agriculture for funding Deren's research. The Prime Minister's office went so far as to publish a "Wanted!" poster with Deren's photograph on it. A group of experts are preparing to register Thai Jasmine rice as a trademark in the US. And to top it off, the IRRI Liaison Officer in Thailand suggested that Thailand should either withdraw from its association with IRRI or play a much more active role in monitoring IRRI's (mis)management of Thai rice genetic resources.

The Jasmine and Basmati cases have inflamed and empassioned people across Asia. As Filipino network MASIPAG points out, "Rice is more than just a food we find [on] our dining table. It is a cereal that has become the cornerstone of our food system, our language, our culture". These blatant cases of biopiracy have raised awareness and understanding about the implications of allowing patents on plants and animals amongst government officials and local people alike. The battle over patents on life will become more heated, because Asia peoples are not going to give in to the appropriation of the heart of their culture.

Contacts:

Witoon Lianchamroon, BIOTHAI, Tel: (66-2) 952-7953, Email: biothai@pacific.net.th

MASIPAG, Tel: (63-49) 536-6183, Email: masipag@mozcom.com


Reference for this article: GRAIN, 2001, Protecting Asia's most valuable resource, Seedling, Volume 18, Issue 4, December 2001, GRAIN Publications

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