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'We have resoundingly lost the basmati case'

Dr Suman Sahai has been working on various issues like saving biological resources, intellectual property rights, indigenous knowledge and the politics of patents.

She is the convener of Gene Campaign which has been advocating for stronger rights for farmers in India. She is a geneticist and has taught and researched in several universities in the United States, Canada and Germany.

In an exclusive interview with Ramesh Menon, she spoke of how the United States had a patent regime that stole traditional knowledge and properties of communities from developing countries like India.

You say that India lost the basmati case. How?

When the basmati patent was granted to RiceTec, India was supposed to have challenged it. But it was handled very badly. It was shameful. For some mystified reason, the government decided to challenge only three of the twenty claims that RiceTec made to claim the patent.

The patent claims were in three categories: on the variety of the rice, grain quality and its method of production.

India did not challenge anything other than the grain quality in the mistaken notion that our trade is only concerned with the grain. This was not only a stupid mistake, but a question of inadequacy.

The bitter truth is that the Council of Agricultural Research had no documentation of our basmati. So, the characterstics of our basmati varieties and method of production was not documented. It is a shocking fact.

But even more inexcusable was that though the patent was given in 1997, India challenged it only in June 2000. Three years is a very long time.

But RiceTec withdrew all the three claims that India challenged.

RiceTec was smart to realize that the three claims were indefensible. In fact, the whole patent is indefensible. With some intelligence and data, anyone could have challenged all the twenty claims and got it dismissed. It was such a bad patent.

Look at RiceTec's reaction. The moment India challenged three claims, it withdrew all of them. If we would have challenged all the 20 claims, this patent would not have stood.

What has happened now is a serious debacle. Only a madman would call this a victory.

What did RiceTec gain?

Everything. On August 14, the United States Patents and Trademark Office gave a ruling asking for restrictions on some claims.

So RiceTec will now have to revise the patent. But in the abstract of the ruling all the characterstics of RiceTec's claims have been admitted. Here is a written, legal and valid ruling of the USPTO which will now be used in future claims.

We must remember that the United States is in favour of RiceTec, not India.

In the ruling, the USPTO says that RiceTec's grain is equal or superior to good quality Basmati. This will allow RiceTec to label every single package of its rice saying - 'superior to basmati'. Now, will it not affect our trade?

RiceTec now has got from the USPTO every single commercial advantage it needs to market the rice. Those who are saying that our trade will not be affected are fools. We have resoundingly lost the basmati case.

Is there some hope of fighting it again to remove clauses like saying that the American product is superior to basmati?

The worst part of it is that within the United States Patent Office there is now no more opportunity to appeal. It is all over now.

Why?

Because that is how the United States law is. You can now take it out into the open courts but that can take years and can be very, very expensive. Does India have the money to fight it?

As far as it was in the patent office, it was easily manageable. But we have botched it and lost it. A bunch of lunatics is now going around claiming this to be a victory!

India's official position is that it has not lost the Basmati case and its interests are not hurt.

RiceTec has been allowed to call its rice equal or superior to Basmati. And here we are going around saying we have won.

Patents are highly sophisticated documents. You have to know how to read a patent. You have to know how to challenge it and then defend it. It is a legal game.

Any scientist worth his salt can challenge any biological patent as there is so much variability. No two plants are ever identical. But we botched it up. Our strategy was wrong.

What is the long term solution?

The long-term solution is for India to ask for a change in Trade Related Intellectual Property Rights. Geographical protection at the moment is given only to wines and spirits as they could be specific to one geographical location.

Like Scotch has got protection as it said that it is specific to Scotland and champagne got protection saying it only comes only from one specific area in France.

We should now do that with basmati too. In the WTO, India should negotiate for products like basmati grown in Pakistan and India.

Biopiracy is a major issue.

It is very clear that Americans have no intention of respecting international rules. Americans have repeatedly stolen the indigenous knowledge of communities from developing countries.

They have shown that they will patent anything they want and international rights of communities be damned.

Is there not a people's movement in the U.S. that can fight this?

There is a people's movement. It is the pressure of NGO's and the civil society that has made some gains. But it is the governments of developing countries that must unite and become more aggressive in the WTO.

Part-II: 'India must get the world to condemn what the US is doing with patents'

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