Articles by Dr. Shiva

Basmati Biopiracy:
Ricetec Must Withdraw All Patent Claims For Basmati Seeds And Plants

by Dr. Vandana Shiva
20 Nov 2000

Ricetec, a Texas based company had claimed a patent for inventing novel Basmati lines and grains.

On September 2, 1997 patent number 5663484 on Basmati rice lines and grains was granted. 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 means for determining the cooking and starch properties of rice grains and its use in identifying desirable rice lines.

Specifically, one aspect of the invention relates to novel rice lines whose plants are semi-dwarf 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 ricelines.

Patent No. 5663484 is based on three forms of piracy -

(1) the piracy of unique cultural heritage embodied in the name of Basmati;

(2) the economic piracy of export markets from farmers and countries who have evolved this unique aromatic rice (claim 4,15,16,17)

(3) the piracy of farmers innovation and nature's creativity in the claim of inventing a novel rice line (claims 1, 5, 6,7,8,9,10, 11,12,13,14,18,19,20)

Economic Piracy Reversed

As a result of protests and a case filed by the Research Foundation for Science, Technology and Ecology before the Supreme Court of India, the Government of India filed a challenge in the U.S. Patent and Trade Mark Office to claims 15-17 of the Ricetec Patent, Ricetec cancelled claims 15-17 and also claim 4 which relates to the grain quality. This means that Ricetec cannot exercise exclusive rights to the trading of Basmati rice and hence India's export markets and traders rights have been protected. However, the rights of farmers continue to be violated due to the non-withdrawal of the remaining claims in the basmati patent which refer to Basmati rice seeds, plants and lines.

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. These exports will not be undermined by Ricetec's patent. The economic piracy of India's export markets has therefore been prevented. However, the cultural and biological piracy have not been stopped. By holding on the remaining claims is 5663484, Ricetec continues to violate India's cultural heritage and farmers rights. Basmati grain has been liberated, basmati seed has not. Stopping this violation is the next step in the Basmati patent battle.

Cultural Piracy of the name "Basmati"

The continued use by Ricetec the name "Basmati" which embodies the unique cultural heritage and innovation, is a form of intellectual piracy. "Basmati" is not a generic name, for all aromatic varieties, but a particular aromatic variety evolved in the foothills of the Himalaya. There are many other aromatic varieties in India which are not called Basmati.

Table 1

Statewise Distribution of Aromatic Varieties in India

The uniqueness of Basmati from South Asia needs to be defended as an indicator of quality both in the interest of Indian and Pakistani farmers and in the interests of the consumer.

Geographical indicators are a form of IPRs. Geographical indications identify a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to its geographical origin.

Geographical indications would allow `Basmati' only to be used for rice originating in India and Pakistan. They would enable us to prevent the use of any means in the designation or presentation of Ricetec is rice as Basmati since that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good.

Geographical indicators (GI) as IPRs can allow refusal or invalidation of the registration of a trademark which contains or consists of a geographical indication with respect to good not originating in the territory indicated. A GI claim on Basmati can thus prevent the marketing of rice as Basmati but it cannot prevent the claim to novelty and invention embodied in the patent. Such a false claim to a patent treats the aromatic characteristics of Basmati as an invention of Ricetec rather than the result of nature's gift combined with farmer's collective innovation and breeding over centuries.

Piracy of Farmers Innovation Ricetec has withdrawn 4 claims related to rice because submissions made by India have established that there is nothing novel in the Basmati 867 and RT 1117 which Ricetec claims to have invented. Bas 370 and Type 3 Basmati, traditional Basmati varieties, have the characteristics of length, width, length width ratio, elongation during index a aromatic compound 2 acety- '1- pyrroline (2AP) and whole grain index.

Table 2

Indian Basmati Characteristics

Ricetec's claims are:

However, rice grains come from rice plants and rice plants grow from rice seeds. If the grains are not novel and are prior art, how can the seeds and plants from which they come be novel?

The Basmati variety for which Ricetec has claimed a patent has been derived from Indian Basmati (Table 3) crossed with semi-dwarf varieties including Indica varieties (Table:4). The Basmati varieties are farmers varieties bred over centuries by farmers of the Indian subcontinent. The method of crossing different varieties to mix traits - in this case the Basmati characteristics from Basmati and the semi dwarf characteristics - is also not novel. It is a very commonplace method of breeding, which everyone familiar in the art of breeding knows. In fact, the national agricultural system has released new semi-dwarf varieties, Kasturi and Pusa Basmati-1. The patent application states these "new varieties more properly should be described as Basmati substitute or quasi-basmati". However, it uses the same breeding step of crossing Basmati varieties with semi-dwarf varieties to claim "characteristic and qualities similar or superior to those of good quality Basmati rice grains produced in India and Pakistan.

The characteristics for which Ricetec has claimed a patent are derived from traditional Basmati. However, the patent claim basically denies the prior breeding by farmers and by denying the role of farmers as breeders, falsely claims an essential derivation as an invention.

Patent claims 1-14 and 18-20 are false claims to "inventing" rice plants, growing seeds into plants, selecting seeds -- activities and innovations carried out by women farmers of South Asia over millennia.

Claim 1-3 refer to rice plants cultivated in North Central or South America or Caribbean Islands, of heights varying from 80cm to 140 cms, grain length of 6.2m to 8.0mm, width of 1.6mm to 1.9mm, average lengthwise increase of 75% to 150% when cooked and yields of 3,000 lbs to 10,000 lbs/acre. These broad claims violate the farmers rights of growers in North, Central, South America and Caribbean islands as well as farmers rights in India. All the traits claimed as "inventions" by Ricetec have been documented in Indian basmatis. IARI Bulletin Number 30 document describing the grains of Bas 370 and Type-3 Basmati, published in 1980.

As described previously in the original Request for Re-examination filed 28 April 2000 at the United States Patent and Trademark Office, a grain denoted Type-3 Basmati manifested similar measurable values for these properties, as shown in the Table 2.

The Basmati patent denies farmers rights, and instead of recognising that the Ricetec Basmati is derived from farmers varieties, it falsely creates an artificial creation boundary at time t1 which allows the false claim of "instant invention". Please see Diagram 1.

Breeders rights in UPOV are also based on a false "creation boundary" which denies the prior art embodied in farmers varieties.

If farmers' rights are recognised, the false "invention" claim at time t1 does not hold, and a patent claim by Ricetec cannot be legitimately recognised.

Diagram 1

On the basis of prior art, the Ricetec claim to inventing basmati is clearly false. But it is also ethically and morally outrageous because it claims invention of rice plants grown across the North American continent, (claims 1-7) rice plants essentially derived from Indian basmati's (claims 8-11), seeds produced by rice plants (claim 12) grain produced from seed (claim 13) progeny plant of the rice plant of any of the claims 1 to 11.

Claims l8-20 are even bolder in biopiracy. They refer to in 18 "A method of selecting a rice plant for breeding or propagation comprising the steps of (a) preparing rice grains from rice seeds (e) selecting a seed from said plant (f) growing said seed into plant. 19 (d) includes cooking a sample of grains.

These steps in seed selection, breeding, propagation, harvesting, cooking have been everyday practices of women in rice cultures. By claiming women's knowledge and innovation as its invention, Ricetec is violating women's human rights and the rights of rice farmers to their innovation and breeding.

If the false claim to invention is maintained, not only does Ricetec, and the U.S. Patent Office deny the innovation and creativity of Indian farmers embodied in the Basmati from which Basmati 867 is derived. In the future, such false claims, which are an infringement of the collective rights and collective innovation of Indian farmers, can actually be used to treat the farmers as infringing on the Ricetec patent.

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 drawings. Such modifications are extended to fall within the scope of the appended claims.

Since traditional Indian Basmatis evolved by farmers such as Basmati 370 and Type 3 Basmati are "functionally equivalent" to Basmati 867, the Ricetec patent, if not struck down, could prevent farmers from growing Basmati or could force them to pay royalties for unique traits and characteristics which are a result of their cumulative and collective breeding.

The cancellation of four grain related claims in the Ricetec Basmati patent is a beginning. But it is not enough.

Ricetec must cancel all claims in Patent No. 5,663, 484.