I. Possible Methods To Protect Indian Rice Industry
In the past there has been some controversy regarding a patent on basmati rice developed by a company called "RiceTec." RiceTec also uses the term, "Texmati" for its Texas-grown variety of basmati rice. Initially, RiceTec's patent seems to misappropriate India's national heritage in basmati rice. However, after learning about the myriad intellectual property schemes, the extent of the Texmati patent rights seems limited. India may safely grant product patents for Western inventions if India speeds up efforts to patent Indian products. What India needs to protect its indigenous plant knowledge is a combination of "scientific mumbo-jumbo and legal savvy." The CSIR formed a team that identified 400 herbs with medicinal uses. Now the CSIR plans to seek patents for these cures to prevent foreign companies from claiming these remedies.
A. Pursue Cancellation of U.S. Patent
The PTO seldom fully cancels a patent once granted. However, the USPTO may cancel a patent for a limited period after issuing the patent. If a patented invention is shown to not be novel, useful, or obvious, then the PTO may cancel the patent.
For RiceTec's basmati patent, India's best point of attack is novelty. DNA fingerprinting may determine whether RiceTec's rice germ plasm originates from a naturally occurring rice. If so, then India could argue that RiceTec's rice contains no substantial differences from a naturally occurring variety, negating the rice's novelty. RiceTec maintains that their patented rice's breeding material came partly from an agricultural seed repository in Idaho that is available to anyone.
If the rice provides no substantial benefits over natural basmati, India may attack the patented rice's usefulness. RiceTec's patent describes the plant as being cultivated in only the Americas and the Caribbean. RiceTec may seek to counter India's claim of a lack of utility. RiceTec could state that the company's rice plant is useful because it grows in a region that does not naturally allow basmati rice to grow.
Indian government officials and rice industry representatives have publicly stated that growers cannot cultivate basmati rice outside of the northern region of the Indian subcontinent. Similar statements have expressed that RiceTec's rice is the same type of rice grown in India for many years. The Indian government should decide on whether RiceTec's rice is the same as Indian basmati or different. If the patent rice is identical to Indian basmati, then RiceTec's invention is not novel. If the rice is not the same, then India may lose a contest on novelty, but may consider geographic indication protection.
B. Plant Breeder Rights
India currently provides no protection for plant varieties. TRIPs only provides plant variety dispute settlement to countries that have national plant variety protection. The Indian parliament unsuccessfully attempted to pass a plant variety protection law in 1994. If India adopts a plant variety patent law soon, India may pursue international protection of indigenous plants.
However, any protection will only pertain to future acts as TRIPs will not apply plant variety protection retroactively. India cannot use TRIPs to contest foreign plant patents if India does not provide plant variety protection at home. Previous Indian governments did not pass a plant protection act, despite urging by Indian professionals in the environmental, food, and patent fields. If such an Indian plant patent system existed, India would have an easier task of protecting its basmati rice industry today.
Although this avenue is currently ineffective to thwart RiceTec's patent, passing a plant patent act now will be valuable for future disputes. The TRIPs agreement requires that any laws on biodiversity, plant, and microorganism protection be in place before 2000. India has not yet begun enacting such legislation.
C. Trademark, Certified Mark, Co-op Mark
RiceTec has a registered U.S. trademark for "Texmati." The trademark registration claims that RiceTec has used "Texmati" for the previous twenty years. If India cannot refute this statement, passing off is hard to prove.
Again, TRIPs provides no dispute resolution process if a member country does not have a conflicting trademark under its own laws. No Indian trademark exists for "basmati." RiceTec does not have a registered trademark of "basmati" anywhere. In the U.S., the word, "basmati," is not registered alone, although other companies have registrations for phrases containing the term. These registrations contain disclaimers that no claim is asserted to the word, "basmati." India needs to consider whether "basmati" should be trademarked in India first, then in other countries.
If India is unsuccessful in pursuing trademark protection, certified marks or collective marks may be worth considering. A certified mark may indicate to consumers that the rice was grown in the Himalayan region of India, as Columbia's coffee growers demonstrate through their Juan Valdez marketing promotion. Perhaps India's rice exporting organizations should pursue creation of a collective mark to distinguish rice from India's rice growers.
D. Marketing
Perhaps Indian basmati's greatest disadvantage to American basmati is poor marketing by the Indian rice industry. Today, the two basmatis do not compete directly in the U.S. Currently U.S. supermarkets usually do not stock the Indian product. Normally, Indian basmati sells only in large bags in specialty markets. Specialty markets do not sell the American basmati.
Hopefully, improved marketing can allow Indian basmati to prevail over American basmati. India may benefit by aggressively competing directly with Texmati and other American basmatis. If store shelves stocked Indian and American basmatis side-by-side, consumers may choose the Indian variety. Informal taste comparisons seem to show that Texmati's flavor and aroma is inferior to the Indian variety. Indeed, one culinary expert described Texmati rice as being starchier and having less aroma than Indian basmati rice. The Indian basmati rice was more fragrant and saliently superior to the Texmati rice. This important distinction, along with Indian rice being generally less expensive, in the U.S., than U.S. rice, should enable India to increase revenue while diminishing RiceTec's market share.
A recent technological development by the Indian Agricultural Research Institute may increase India's basmati rice production. This development, India's first hybrid basmati rice, may give a higher yield than any current Indian basmati rice. If India's new basmati rice successfully competes with RiceTec's Texmati, then India's exploitation of biotechnology could increase the Indian rice industry's profits. If this Indian hybrid is indeed superior to other basmatis, the Indian government can help the Indian rice industry by passing the appropriate patent legislation and pursuing international intellectual property protection for this hybrid rice.
However, bioengineering of food products does not always spell success in the marketplace. For example, U.S. tomato growers breed varieties of tomatoes that resist damage when hauled in trucks, stay fresh for longer time periods, and even have a square shape to improve the packing arrangement in cans. However, these significant improvements result in a dramatic loss of flavor.
India markets a high-yielding disease-resistant basmati rice variety, "Pusa No. 1," that is not as fragrant or flavorful as traditional Indian basmati rice. Indian basmati rice commands a high price for its delicious traditional flavor. In the eighties Pakistan introduced high-yielding varieties to improve productivity. Some believe that the Pakistani rice industry currently receives a lower price for its basmati rice because Indian basmati rice is perceived as a higher quality basmati rice. Fearing a similar fate, Indian basmati exporters hope that the Indian government designates rices like Pusa No. 1 as "basmati-parentaged" instead of "basmati." They hope that this will help consumers to not become confused by lower quality basmati-like rice.
Even India's food and commerce ministries refuse to recognize Pusa No. 1 as basmati rice. Perhaps the Indian government should also seek to have foreign governments to classify RiceTec's Texmati and similar rices as basmati-parentaged. Such a description may assist consumers in identifying Indian rices and Indian-style rices.
E. Do Nothing
If India were to do nothing regarding RiceTec's patent, India's basmati market may suffer little, if any, damage. RiceTec's U.S. patent provides no advantage over Indian growers. U.S. patent laws do not apply to India.
A patent does not grant the patentee the right to use an invention. A patent merely grants the right to exclude others from using the invention for twenty years. If India successfully convinces the PTO to cancel RiceTec's patent, RiceTec would still be free to use the rice as no other patent exists to be infringed. Canceling the patent only allows anyone to use the rice. Also, India still can continue to sell its basmati worldwide, whether the USPTO cancels the patent or not.
II. Suggested Future Efforts
* Develop home country protection for trademarks, plant variety protection, and geographic indication to take advantage of international agreements.
* Build computer databases to document and protect Indian plants and plant products.
* Employ Indian embassies to monitor patents, trademarks, and other intellectual property rights in foreign countries.
* Follow Malaysia's practice of conducting research and collecting information on traditional Malay medicinal plants with the intention of patenting them for commercial purposes.
IIII. Conclusion
Initially, RiceTec's patent seems to misappropriate India's national heritage in basmati rice. However, after learning about the myriad intellectual property schemes, the extent of the Texmati patent rights seems limited. As a practical matter quality Indian basmati rice is still superior to Texmati. It is incumbent upon the Indian rice industry to aggressively ensure that this message reaches the consumer. Concerted efforts between Indian business and government can effectively promote the use of India's large pool of scientific manpower to protect indigenous plants from exclusively foreign exploitation. This technologically-endowed work force provides potential for India to profit from improved intellectual property protection.
© Frederic M. Douglas, April 1999; 2010. All Rights Reserved.
Frederic M. Douglas is an IP litigator, dedicated to pursuing practical resolution of problems concerning patents, trademarks, copyrights, trade secrets, and other areas of law.
fdouglas@cox.net
(949) 293-0442
http://www.linkedin.com/pub/frederic-douglas/17/37b/7a1
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