Basmati Rice: Geographical Indication or Mis‐Indication

• Date: 01 March 2006
• Published date: 01 March 2006
• DOI: http://doi.org/10.1111/j.1422-2213.2006.00273.x
• Author: Harsh V. Chandola

Basmati Rice: Geographical Indication or

Mis-Indication

Harsh V. Chandola

Lall & Sethi Advocates

Indian farmers may not understand the Lockean or the Hegelian justif‌ication for intellectual

property. Neither do they understand the politics (realpolitik) of the negotiations of the

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Many of them

had no idea that in September 2003 their fate might have been decided in the Cancun

Ministerial meeting of World Trade Organization (WTO) member countries. But they do

understand simple economics, i.e. if the American company which has registered a patent for

basmati rice continues to sell rice as American-style basmati rice, it may hurt their exports. If

the Indian Government had a key to the past, they would have def‌initely renegotiated-TRIPS

to protect $350 million export market of basmati rice. Even if we opprobrium TRIPS and

characterize it as an instrument of exploitation used by developed countries to protect their

own interest, the fact of the matter is, there is no escape from it. Withdrawing from TRIPS

entails too many implications for the Indian economy, and it would be cynical to suggest such

an idea. Developing and least developed countries have fallen to the economic and political

pressure of the Developed countries, and the former group of countries will never be able to

convince the latter to renegotiate TRIPS to bring a balance to it, even if their call is eloquent,

justif‌ied and ref‌lects reality. It would be like knocking on the lid of a coff‌in: knock, as much as

you like, you will not wake him. Post-Cancun (WTO Ministerial Meeting), it is vital for the

Indian Government to formulate strategies to protect its interest in TRIPS. The strategy

should focus on the options available within the TRIPS framework. We might have lost

advantage in the f‌ield of patents to western pharmaceutical companies, but if a proper

strategy is formulated we will be able to protect our basmati exports.

Keywords geographical indications; basmati rice; TRIPS; WTO; RiceTec; developing

countries

Introduction

Throughout history, rice has been one of man’s most important foods. This unique

grain helps sustain two-thirds of the world’s population.

1

Archeological evidence

suggests that rice has been the staple food of mankind for more than 5000 years.

2

Today, basmati rice, in particular, is an object of intellectual property. It was

beyond imagination, prior to 1997, to conceive that this grain, which forms the

staple diet for half the population of the world, would be an object of ‘‘intellectual

property’s’’ battles which would be fought within the framework of the Agreement

on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The Journal of World Intellectual Property (2006) Vol. 9, no. 2, pp. 166–188

r2006 The Author. Journal Compilation r2006 Blackwell Publishing Ltd166

If def‌initions were to be considered in their absolute sense, then basmati rice

would not f‌ind a place in the contours of the intellectual property regime.

Intellectual property rights can be def‌ined as rights given to people over the

creations of their minds.

3

It would be diff‌icult to f‌it basmati rice into the strict

def‌inition of intellectual property, and since our predecessors have already included

it in the domain of intellectual property rights, it is futile to go into the rhetoric of

the so-called def‌initions.

First discovered thousands of years ago in the foothills of the famous

Himalayas, basmati rice has made its way around the world and is enjoyed by

countless people.

4

Basmati rice is an aromatic variation of rice, grown mostly in

India and Pakistan.

5

It is renowned for its shape that elongates rather than expands

in width when cooked.

6

The word basmati means the ‘‘queen of fragrance’’, and its

aroma distinguishes the rice from other varieties of rice.

7

However the above notion

dispersed pursuant to the granting of Patent No. 5,663,484 on September 02, 1997,

to the Texas-based company RiceTec by the US Patent and Trademarks Off‌ice.

8

The broad patent gave several rights, including exclusive use of the term ‘‘basmati’’,

a monopoly on farm-bred Indian/Pakistani basmati varieties with any other

varieties in the Western Hemisphere, as well proprietary rights on the seeds and

grains from any crosses.

9

The patent also covered the process of breeding RiceTec’s

novel rice lines and the method to determine the cooking properties and starch

content of the rice grains.

10

The grant of the said patent witnessed an emotional

outburst associated with the term basmati rice in India, terming it as yet another

attempt of bio-piracy by the West.

11

Some believe that the theft involved in the

basmati patent is threefold: a theft of collective intellectual and biodiversity heritage

of Indian farmers; a theft from Indian traders and exporters, whose markets are

being stolen by RiceTec Inc.; and f‌inally deception of consumers since RiceTec is

using a stolen name, basmati, for rice that is derived from a variation of Indian rice

but not grown in India, and hence of a different quality.

12

However, contrary to

many beliefs of the media and public at large, India did not lose the basmati patent

challenge. No new patent rights were given to RiceTec, neither was any right given

to market their varieties as equivalent to or superior to basmati. RiceTec was forced

to give up its far-reaching and false claims to have invented a very broad range of

basmati rice lines and plants. (Of the original claims only three narrow ones

survived.)

13

What survived the battle of the patent challenge is the issue of basmati as a

geographical indication (GI). While the focus was initially on the patent dispute,

both India and Pakistan realized the fact that basmati, as such, is a valuable GI, and

at stake are exports worth $350 million from India and $250 million from Pakistan

for this specif‌ic variation of rice.

14

Indian farmers may not understand the Lockean or the Hegelian justif‌ication

for intellectual property. Neither do they understand the politics (realpolitik) of the

negotiations of TRIPS. Many of them had no idea that in September 2003 their fate

might have been decided in the Cancun Ministerial meeting of World Trade

r2006 The Author. Journal Compilation r2006 Blackwell Publishing Ltd

The Journal of World Intellectual Property (2006) Vol. 9, no. 2 167

Basmati Rice Harsh V. Chandola