whose Basmati it is?- case solution


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whose Basmati it is?- case solution

  2. 2. BRCM COLLEGE OF BUSINESS ADMINISTRATION 2WHOSE BASMATI IS IT? What case is all about (Brief Introduction) In September 1997, an American company RiceTec Inc, a small food technology company based in Taxes, was granted a patent by the US patent office to call the aromatic rice variety developed in USA 'Basmati'. RiceTec Inc, had been trying to enter the international Basmati market with brands like 'Kasmati' and 'Texmati' described as Basmati-type rice with minimal success. Ultimately, the company claimed to have developed a new strain of aromatic rice by interbreeding basmati with another variety. They sought to call the allegedly new variety as Texmati or American Basmati. RiceTec Inc, was issued the Patent number 5663484 on Basmati rice lines and grains on September 2, 1997. This was objected to by two Indian nongovernmental organizations (NGOs) — Centre for Food Safety, an international NGO that campaigns against biopiracy, and the Research Foundation for Science, Technology and Ecology, an Indian environmental NGO who filed legal petitions in the United States. The Centre for Scientific and Industrial Research also objected to it. India challenged arguing that Basmati is unique aromatic rice grown in northern India and not a name Rice tec could claim and only inventions can be patented. Concequently US patent office accepted accepted India’s basic position and the company had to drop 15 out of 20 claims that it had made. And for remaining claims, Rice tec managed to evolve three new varieties of rice for which it got patent from United states Patent and Trademark office (USPTO). Rice Tec was not handed over Basmati Brand but provided a patent for superior three strains’ of Basmati developed by cross-breeding a Pakistani Basmati with semi-dwarf American variety. According to WTO agreement, geographic indication like Basmati can be protected legally and their misuse can be prevented. And Indian government was late in taking such actions.
  3. 3. BRCM COLLEGE OF BUSINESS ADMINISTRATION 3WHOSE BASMATI IS IT? Question: 1: can any of the following Viz., turmeric, neem and the name Basmati be patented? Basically patents are given for new innovations. Before we go for answering we need to know what is Biopiracy. Biopiracy is a situation where indigenous knowledge of nature, originating with indigenous peoples, is used by others for profit, without permission from and with little or no compensation or recognition to the indigenous people themselves. Inventions can only be patented if they satisfy three criteria: Novelty: only inventions that are genuinely new, and not part of existing knowledge, can be patented. Non-obviousness: if the new invention is obvious, i.e. anyone familiar with the subject could easily anticipate the invention, then it cannot be patented. Utility: the invention has to work in practice. A. Turmeric Use: The rhizomes of turmeric are used as a spice for flavouring Indian cooking. It also has properties that make it an effective ingredient in medicines, cosmetics and dyes. As a medicine, it has been traditionally used for centuries to heal wounds and rashes. History: In 1995, two expatriate Indians at the University of Mississippi Medical Centre (Suman K. Das and Hari Har P. Cohly) were granted a US patent on use of turmeric in wound healing. The Council of Scientific & Industrial Research (CSIR), India, New Delhi filed a re-examination case with the US PTO challenging the patent on the grounds of existing of prior art. CSIR argued that turmeric has been used for thousands of years for healing wounds and rashes and therefore its medicinal use was not a novel invention. Their claim was supported by documentary evidence of traditional knowledge, including ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association. Despite an appeal by the patent holders, the US PTO upheld the CSIR objections and cancelled the patent. The
  4. 4. BRCM COLLEGE OF BUSINESS ADMINISTRATION 4WHOSE BASMATI IS IT? US Patent Office revoked this patent in 1997, after ascertaining that there was no novelty; the findings by innovators having been known in India for centuries. So we can conclude that Turmeric cannot be patented because turmeric is being used in India for thousands of the years and therefore unless and until its new use is not being invented, it can not be patented as it would not be called invention for which generally patents are given. B. Neem Use: Neem extracts can be used against hundreds of pests and fungal diseases that attack food crops; the oil extracted from its seeds can be used to cure cold and flu; and mixed in soap, it provides relief from malaria, skin diseases and even meningitis. History: In 1994, European Patent Office (EPO) granted a patent (EPO patent No.436257) to the US Corporation W.R. Grace Company and US Department of Agriculture for a method for controlling fungi on plants by the aid of hydrophobic extracted Neem oil. In 1995, a group of international NGOs and representatives of Indian farmers filed legal opposition against the patent. They submitted evidence that the fungicidal effect of extracts of Neem seeds had been known and used for centuries in Indian agriculture to protect crops, and therefore, was unpatentable. In 1999, the EPO determined that according to the evidence all features of the present claim were disclosed to the public prior to the patent application and the patent was not considered to involve an inventive step. The patent granted on was Neem was revoked by the EPO in May 2000. EPO, in March 2006, rejected the challenge made in 2001 by the USDA and the chemicals multinational, W. R. Grace to the EPO’s previous decision to cancel their patent on the fungicidal properties of the seeds extracted from the neem tree. The use of neem extract, or its seeds or leaves, cannot be patented, since they have been used for centuries. Its properties can only be patented if they are considerably modified. For instance, any synthetic variation of a naturally occurring product is patentable, as it does not occur in nature in that form.
  5. 5. BRCM COLLEGE OF BUSINESS ADMINISTRATION 5WHOSE BASMATI IS IT? So we can conclude that in neem case also unless and until new usage of neem is not found out, neem can not be patented because it has been used by Indian people for various uses since many years and hence unless new use is not found patenting is not possible because patents are given for some new inventions. C. Name Basmati Many critics of the basmati patent have argued that RiceTec’s use of the name "basmati" is wrong because only rice grown in northern India and Pakistan can be termed basmati and no other person or country can use the name Basmati and The Trade-Related Intellectual Property (TRIPs) Agreement of the World Trade Organization provides for protection where a given quality or reputation of an item is attributable to its geographic origin. Basmati rice, sought-after for its fragrant taste, was developed by Indian farmers over hundreds of years, but the Texan company RiceTec obtained a patent for a cross-breed with American long-grain rice. RiceTec was granted the patent on the basis of aroma, elongation of the grain on cooking and chalkiness. 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, agricultural practices and the genetics of the Basmati varieties.” But in 1998 the US Rice Federation submitted that the term “Basmati” is generic and refers to a type of aromatic rice. In response, to a petition filed by the US and Indian civil society organizations which sought to prevent US-grown rice from being advertised with the word “Basmati”, the US Department of Agriculture and the US Federal Trade Commission rejected it in May 2001. It opined that the label “American-grown Basmati” did not mislead the consumers, and deemed “Basmati” as a generic term. So we can conclude that Basmati Name cannot be patented because it is a name given to long rice having good fragrance grown in northern part of India and Pakistan for thousands of years and according WTO’s agreement
  6. 6. BRCM COLLEGE OF BUSINESS ADMINISTRATION 6WHOSE BASMATI IS IT? regarding geographic indication which can be protected against misuse hence Basmati Name is not patentable. Question: 2: Evaluate the role played by Government of India in preventing the misuse of the name Basmati. Answer: In an official release, the government of India reacted immediately after learning of the Basmati patent issued to RiceTec Inc., stating that it would approach the US patent office and urge them to re-examine the patent to a United States firm to grow and sell rice under the Basmati brand name in order to protect India's interests, particularly those of growers and exporters. Furthermore, a high level inter-ministerial group comprising of representatives of the ministries and departments of commerce, industry, external affairs, Council for scientific and industrial research (CSIR), Agriculture, Bio-technology, All India Rice Exporters Association (AIREA), APEDA, and Indian Council of Agricultural Research (ICAR) were mobilized to begin an in-depth examination of the case. The contents and implications of the patent are currently being analyzed in consultation with patent attorneys and agricultural scientists. The government of India is particularly concerned about the patenting of Basmati because of an earlier case where the US granted a patent to two Indian-born scientists on the use of Turmeric as a wound healing agent. This case worked in favor of India because the patent was subsequently revoked after scientists of (CSIR) successfully challenged the patenting on the ground that the healing properties of Turmeric had been 'common knowledge' in India for centuries. There is a clause in US patent laws that will accept any information already available in published or written form anywhere in the world as 'common knowledge'. As a result, India was able to furnish published evidence to support their case that the healing characteristics of Turmeric is not a new invention and as such cannot be patented.
  7. 7. BRCM COLLEGE OF BUSINESS ADMINISTRATION 7WHOSE BASMATI IS IT? According to the Economic Times of India, the law firm of Sagar and Suri who won the Turmeric patent case and presently representing the government against RiceTec Inc. in existing cases, said; "RiceTec has got a patent for three things: growing rice plants with certain characteristics identical to Basmati, the grain produced by such plants, and the method of selecting the rice plant based on a starch index (SI) test devised by RiceTec Inc." The lawyers plan to challenge this patent on the basis that the above mentioned plant varieties and grains already exist and thus cannot be patented. In addition, they encountered some information from the US National Agricultural Statistics Service in its latest Rice Year book 1997, released in January 1998, which states that almost 75 percent of US rice imports are the Jasmine rice from Thailand and most of the remainder are from India and Pakistan, “varieties that cannot be grown in the US" This piece of information is rather interesting and can be used as a weapon against the RiceTec Basmati patent. In June 2000 Agriculture and Processed Food Products Development Authority (APEDA) Under the Ministry Of Commerce filed a re-examination application contesting 3 claims of the patent. So. Company withdrew its claims on 4 points that relate to trade of Basmati. INDIA WON THE CASE BASED ON EOGRAPHICAL INDICATIONS DURING JUNE 2000! For years, India largely ignored any claim or legal protection for growers and marketers of basmati. A bill has been introduced to recognize produce as belonging to a specific geographical area, but it is still pending before a panel of the Parliament. Given that basmati is not patented by geographic location even within India, the country's international patent appeal appears weak. For over two decades ''basmati'' has been used in the United States to describe long- grain aromatic rice grown domestically. This usage went unchallenged by India, so much so that the patent claims were under the plea of ''long usage'' provided for in trade-related intellectual property rights. Ricetec claims that India felt posed a threat to Indian basmati exports to the United States. In hundreds of pages of scientific evidence, India argued that its basmati varieties already had the characteristics claimed as unique by Ricetec.
  8. 8. BRCM COLLEGE OF BUSINESS ADMINISTRATION 8WHOSE BASMATI IS IT? And india won the case and Ricetec has to withdraw his 15 claims out of 20 but it is always questionable that whose basmati it is? So we can evaluate government role as fair enough for protecting the name basmati because government immidiatly reacted against it, made a committee and took help from those who have already experienced same in case of turmeric and they also prevented patent of basmati through APEDA under ministry of commerce through re-examination and finally won the case based on EOGRAPHICAL INDICATIONS during JUNE 2000.