HINDUSTAN TIMES
US firm wins appeal for Basmati patent
Siddharth Zarabi
New Delhi, August 20
http://www.hindustantimes.com/nonfram/210801/detfro01.asp

               For the moment India seems to have lost the Basmati dispute. The United States Patent and Trademark Office (USPTO) has upheld Texas-based RiceTec Inc's patent on a "superior strain" of Basmati rice.

               But the ruling has opened a legal minefield. It says that RiceTec's rice is qualitatively better than Basmati, while dropping the name Basmati from the patent title. That could, in fact, prevent India from selling improved strains of the grain.

               Although the ruling doesn't hand over the Basmati brand name to the American company, RiceTec can sell its rice under other brands (e.g.Texmati) and say that its rice is "superior to Basmati" on packages. This is exactly how the text of the USPTO ruling describes RiceTec's strain.

               The Indian authorities can now file a fresh appeal with the USPTO or move civil courts in the US. They are also negotiating under the aegis of the World Trade Organisation (WTO). These negotiations are geared towards including Basmati in the
`geographical indication' category, with the case of Scotch whisky as a precedent.

               Precedent tells us that if the Indian government loses the patent appeals, the country's Basmati exports could be seriously jeopardised. Take this instance: a Kerala-based firm used to sell a product derived from pepper.
               Sources say that a US firm Sabinsca Corporation, which has a patent on those pepper products, recently served a notice to the Indian company seeking to restrain its sales.

               Anil Swarup, chairman of the Agricultural and Processed Food Export Authority
(APEDA) put a brave face on the issue, while confirming the Basmati development. "We are evaluating the situation," he said. Swarup said,however, that he had not yet received formal communications about the order. "In any case our stand is that Basmati rice
cannot be patented. It pre-exists all claims," he said.

               Swarup insists that India's commercial interests have been protected. "The ruling is an affirmation of our fight and Basmati exports will not be affected." But, given the fact that RiceTec could use the US patent and file claims in other countries, India's annual exports of Basmati (more than 6 million tonnes) could be at stake.

               Sources told the Hindustan Times that the USPTO delivered a ruling on August 14 against an appeal filed by the Indian government through APEDA on RiceTec's Basmati patent (no 5663484) obtained in 1997.

               India had filed a request for re-examination of the patent in April 2000. The
challenge was limited only to claims 15-17 of the 20 filed by the company, which later withdrew these and another claim after an international outcry.

               The USPTO opened up all the claims for re-examination. India wanted all of them revoked.

               Food and trade policy analyst Devinder Sharma said that he had studied the USPTO ruling and was appalled."The ruling implies that the patent of
RiceTec has been upheld. They have said that the invention relates to novel rice line varieties BAS-867, RT-1117 and RT-1121 and to plants and grains
of these lines."

               In addition, the USPTO has also said the RiceTec method of breeding is novel, he said. "USPTO had ruled on claims that we did not contest as a result of which the RiceTec patent stays."

               Sharma also says that the new ruling just proves that the US patents process is extremely unfair, costly and flawed. "While we can keep on appealing, the initiative has been lost and the battle has become one-sided," he said.