asmatI PIce Patent Issue

Publication Date: 23-Oct-2000

Analysis of the real issues involved in the controversial case of Basmati Rice Patents
from various perspectives: commercial, legal and general. Point to point explanation of
widely held misconceptions arising out of limited awareness.
n 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 and bureaucrats and officials in various patent offices
and patent experts and even consular staff. These articles have created certain beliefs in the
minds of readers. We are constrained to write this article in an attempt to set right some of the
'media created' misconceptions.
At the outset, we list below some of the misconceptions:
We have listed these misconceptions under the headings commercial and legal so that we can deal
with them individually.
4mmercIaI hIsc4nceptI4ns
O Rice-Tec has patented the name 'BASMAT' for rice at the US Patent Office : False
4 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.
4 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 BASMAT quality of rice, available in ndia 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 BASMAT line of rice.
O As a result of patenting the name 'BASMAT' ndian manufacturers, growers and exporters will not
be able to export, sell in ndia or even grow 'BASMAT' rice. The ndian consumer will be forced to
eat only Rice-Tec BASMAT rice. ndian exports of BASMAT rice to Europe and particularly America
will be affected : False
4 These misconceptions arise because of the absolute lack of understanding of the patenting process
in ndia and/or the US. A patent does not confer a positive right. n 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
which marks 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 lines and claim a right to the
new rice grain or line produced in accordance with this method.
4 Another claim relates to a method of predicting the cooking and starch properties of the rice grain
by determining the 'Starch ndex' and thereby identifying grains that can be cooked to the
firmness of traditional BASMAT rice preparations and further using the method for selecting
desirable segregants in rice breeding programs. n 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. n no way will an ndian manufacturer
grower or exporter of BASMAT rice be prevented from conducting his traditional activity as a
result of this patent.
egaI hIsc4nceptI4ns
O Rice-Tec was able to patent 'BASMAT' (name and process) because of defect in the ndian Patent
system or laxity or lapses on the part of the ndian Government : False
4 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 ndia, it will be processed and granted according to
the system prevalent in ndia as formulated by the current Patent Law in ndia. Similarly a patent
application filed at the US patent office will be processed and granted in accordance with US patent
laws. The ndian patent laws and system or the ndian Government have no bearing on either the
processing or the grant of a Patent in the US or vice versa. f 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 ndian Patent System, Patent Laws or the ndian Government. The existence or nonexistence
of an ndian Patent System does not in any way prevent an ndian inventor from obtaining a
patent for his/her invention in the US or stopping an ndian Company or Association from
protecting its trade mark, brand name or ap pellation rights in the US or anywhere else in the
world. t is a little known fact in ndia that the US Patent system has no provision for objecting or
opposing the grant of a patent application. The ndian Patent System has well defined provisions
for opposition. Just as the US Government is making vociferous attempts to introduce changes in
the ndian Patent Laws, should we not insist on changes in the US Laws such as asking them to
introduce provisions for opposition ?
O The ndian Government awoke only belatedly to take action and should have objected much earlier
to the grant of the patent to Rice-Tec : False
4 There are no provisions for opposition before grant at the US Patent Office. All nterested parties
are mere spectators. Knowledge of what is being patented has hitherto been made available only
after a patent application is granted. The ndian Government could do nothing to prevent the grant
of the patent to Rice-Tec.
O t is the duty of the ndian Government to object to such patents being obtained at the US Patent
Office. : False
O The ndian Government should lodge protests at the World Trade Organisation against Rice-Tec
and the US Patent Office for the grant of this Patent. : False
O That there are no experts in ndia that are in a position to deal with opposing / obtaining patents
in the US and therefore ndia does not have the 'legal muscle' to prevent the grant of such
patents : False
4 There are several competent experts in ndia who are in a position to assist in obtaining patents in
the US and other countries and in opposing foreign patent applications. t is however true that
both procedures are very expensive.
O That the whole controversy would not have arisen if the ndian Government had amended its
Patent Laws or introduced laws to protect names (marks) like Basmati, Darjeeling, Bikaner
etc. : False
4 Once again the media are quick to blame the ndian Government. There are in the first place
adequate laws in ndia to protect against the misuse of marks. n ndia 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. n addition, there are enough precedents for taking action under the
Law of Passing Off for taking action against such misuse.
4 owever, 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. f any person is
able to get away with protecting a well known ndian 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.
O That in general the ndian patent laws are weak and need considerable modification to suit the
interests of ndian inventors who wish to protect their inventions in the US or other
countries : False
4 n ndia statistics available for the year 1995 show that 1545 patent applications were filed by
ndian inventors and corporations or ndian Govt. Organisations, whereas 5021 applications were
filed by foreigners. Many of the ndian applications were filed by C.S..R. and included in the
ndian filing statistics are applications made by Multinationals like industan Levers. n the same
year, 415 patent applications were granted to ndian applicants. Any amendment in the Patent
Laws is not likely to increase the filing ratio in favour of ndian inventors. The aim of any law
within a country is to protect the interests of its own nationals and corporations. Outside agencies
are clamoring 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 ndian residents.
n addition there are certain general misconceptions :
eneraI hIsc4nceptI4ns
O That names can be patented.
O That there is such a thing as a WORLD PATENT.
O That a patent obtained in the US is effective in ndia or vice versa.
O That after signing of the WTO agreement, foreign patents are applicable in ndia or that a patent
application filed in ndia has any effect outside ndia.
O That the absence of a strong Patent law is hurting the ndian ndustry.
O That because of a weak patenting system, ndian inventors and research is suffering and
technology and research created in ndia is not protectable internationally.
O That ndian inventors are unable to obtain patents and therefore commercialise their inventions in
the US and other markets.
The remainder of this article seeks to remove some of these misconceptions
%rue facts In the asmatI ase
O n 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 'BASMAT RCE LNES AND GRANS'. This patent application was accepted / granted
on Sept 2, 1997 under number ,663,484.
O Besides, Rice Tec also filed for registration of trade marks such as TEXMAT and TEXMAT LTE.
These trade mark applications were also registered. There is no trade mark registration for the
word BASMAT as a trade mark.
On the basis of these facts, let us deal with each of the misconceptions and the reasons why they
have arisen in the minds of the ndian people as a result of the media blowing the issue totally out
of proportion either out of ignorance or in an attempt to deprecate the ndian Government.
t is always open to an ndian inventor to protect his invention in one or more countries outside
ndia. e does not need the support of ndian Patent Laws for this purpose. What is lacking is
genuine support for the ndian inventor from the ndian ndustrialist is willing to invest in even
questionable technology if it has a foreign name tag attached to it and the ndian financial
nstitutions who are not willing to provide soft loans to ndian inventors for converting their
inventions into viable commercial products and protect their inventions in ndia or overseas.