This update on RiceTec's Basmati Rice Patent was produced jointly by RAFI, the Berne Declaration and the Gene Campaign (India).

**Controversy Still Steaming over "Counterfeit" Basmati: Indian Government Prepares to Challenge Basmati Patent in US**

Summary: Whatever happened to RiceTec's controversial claim on basmati rice? Who controls the patent? Will it be legally challenged? Who has the right to use the "basmati" name? In this update, RAFI, the Berne Declaration, and the Gene Campaign review the problem, the promise and the progress (or lack of it) surrounding the basmati patent dispute.

Background In September 1997 a Texas-based company, RiceTec Inc., won a controversial US patent (No. 5,663,484) on basmati rice lines and grain. Basmati rice has been grown for centuries in what was the Greater Punjab region, now divided between India and Pakistan. Farmers in this region have selected and maintained Basmati rice varieties that are recognized worldwide for their fragrant aroma, long and slender grain and distinctive taste. RiceTec's basmati patent has become widely known as a classic case of "biopiracy." Not only does the patent usurp the basmati name, it also capitalizes on the genius of South Asian farmers. The patent applies to breeding crosses involving 22 farmer-bred basmati varieties from Pakistan and India. The sweeping scope of the patent extends to such varieties grown anywhere in the Western Hemisphere (although the patent is valid only in the US).

Basmati is known as the "crown jewel" of South Asian rice. Prized for its exquisite aroma and taste, it commands a premium price in both domestic and international markets. Approximately 1 million hectares in India and 0.75 million hectares in Pakistan are planted in basmati varieties, where it is cultivated by hundreds of thousands of small farmers. In India alone, basmati exports were valued at approximately US$425 million in 1998/99 ; but export markets could be threatened if forced to compete with RiceTec's basmati. (For more background information, see RAFI GenoTypes, "The Basmati Rice Patent," 1 April 1998, http://www.rafi.org, and Berne Declaration Press Package (in German), "Das Basmati Patent," 24 September 1999, http://www.evb.ch).

Royal RiceTec RiceTec Inc. is a small company with annual sales of US$10 million and 120 employees. "We represent a tiny fraction of the world's basmati rice production," explains Bruce Hicks, spokesman for RiceTec Inc. But RiceTec has a royal bloodline that originates in the tiny mountain principality of Liechtenstein, bordering Switzerland and Austria. Liechtenstein's royal family, headed by the reigning Prince Hans Adam II, is sole owner of RiceTech Inc. The billionaire prince, whose personal fortune is estimated at US $3.75-$4.5 billion dollars, is the largest private landowner in neighbouring Austria.

In May 1998 RAFI launched a basmati postcard campaign in an attempt to demonstrate the intense public sentiment against RiceTec's monopoly on basmati rice. Despite receiving thousands of postcards from all over the world beseeching him to abandon the notorious basmati patent, Prince Hans-Adam has failed to take action. While he is gaining international notoriety for his company's controversial patent, the prince is occupied by political battles closer to home. (On 28 October 1999 Prince Hans-Adam was condemned by the European Court of Human Rights in Strasbourg for violating rights of free expression. In Liechtenstein, Prince Hans Adam's newly proposed constitution - which seeks to broaden his powers - is opposed by the Liechtenstein government. )

Indian Government Counters Biopiracy For the past two years, it has been widely rumoured that the governments of India and Pakistan would officially challenge the RiceTec patent. But some suggest that the patent's 20-year term will expire before India officially files its challenge. According to Mohan Lal, the Director of India's Department of Industry and Development, the government is determined to fight the RiceTec patent and will soon file a re-examination petition at the US Patent and Trademark Office (US-PTO) based on technical grounds (that is, the patent does not meet one or more of the technical criteria of being new, useful and non-obvious). In 1998, the Indian government appointed an expert technical committee to review the basmati patent. The committee has compiled and reviewed over 1,500 pages of background information that will form the basis for challenging the US patent.

The Indian government has not divulged any details about the basis for its technical challenge of the RiceTec patent. Observers close to the process indicate that the government will use documented information on Indian basmati varieties to refute RiceTec's claims of novelty. K.R. Bhattacharya, former head of the Department of Grain Science of the Central Food Technological Research Institute (Mysore, India), has prepared a detailed critique of the RiceTec patent which focuses on the patent's claims relating to rice quality - (as opposed to claims on rice lines and grains.) Bhattacharya believes that the main pillar of the patent and the central focus of 15 out of 20 claims, relating to the so-called starch index, "is a skillfully crafted myth." According to the patent, RiceTec's invention includes the discovery that the likely texture of cooked rice can be predicted by measuring a grain's "starch index" - the sum of its percent amylose (PA) and alkali spreading value. Bhatta! charya concludes, "It is our contention that the above so-called relation of starch index to rice cooking behaviour is fallacious, artificial, false and fake; and that it is strongly suggestive of being deliberately got up to manufacture a patentable claim."

RiceTec does not waver in defense of its patent, "We are absolutely confident in our patent and its viability and legality - there's no basis for challenging the patent," according to Bruce Hicks, spokesperson for RiceTec.

The Indian government has also launched a new and costly initiative to combat future biopiracy claims. At a cost of US $125 per sample, the Indian Council of Agricultural Research (ICAR) has begun DNA fingerprinting of crop varieties and medicinal plants in its gene bank. ICAR director general, Rajendra Singh Paroda, told Nature Biotechnology, "We are doing this to establish proof of origin of the genetic material, in the event of ownership or patent disputes."

Protecting Geographical Indication 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. 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. Well-known examples include "Scotch whiskey" and "French champagne." However, to gain legal protection under TRIPs, it is preferable for India to have domestic legislation that provides for protection of geographic indications of goods. Motivated by the basmati debacle, the Indian government is preparing to introduce a bill called "the Geographical Indication of Goods' Registration and Protection Act." The legislation seeks to provide protection for goods rendered distinctive by their quality or uniqueness, and would establish a national registry of such items. In addit! ion to basmati, other unique goods of Indian origin could be protected such as Darjeeling tea, Alphonso mangoes, Malabar pepper, and Alappuzha cardamom.

At the TRIPs Council, India, Switzerland, the European Union, Czech Republic, Morrocco and others advocate strongly for strengthening and widening the protection of geographical indications for agricultural products under Article 23. That article, which currently applies only to wines and spirits, prevents the use of expressions such as 'kind', 'type,' or 'imitation,' which could mislead the public as to the geographic origin of the product. If it were applicable to basmati rice, for example, Article 23 would prevent RiceTec from marketing its Kasmati brand rice as "traditional basmati style" or its Texmati brand as "American basmati." At the TRIPs Council, the widening of protection under Article 23 is opposed by the US, Australia and New Zealand - governments who generally seek to strengthen intellectual property at WTO and who do not object to the use of geographical indications for wines and spirits.

Personal Appeal to the Prince In September 1999 François Meienberg of the Zurich-based Berne Declaration and Regula Imhof of Liechtenstein's Environmental Protection Society, with support from Suman Sahai of India's Gene Campaign and RAFI, organized a personal meeting with Prince Hans Adam. Meienberg and Imhof met with Prince Hans-Adam at his castle in Liechtenstein for two hours on 24 September 1999.

"We tried to convince the Prince that RiceTec did not "invent" basmati rice, and that it is wrong to appropriate the resources and knowledge of South Asian farmers," said François Meienberg. "Despite a very cordial reception by the Prince," adds Meienberg, "he continues to believe that basmati is a generic name, and that everything about the patent is legal. He told us that biopiracy is not the problem, and he believes that India would benefit most from strong intellectual property laws and a totally free market. He told us that if India had strong patent laws, RiceTec might even sell products adapted for the Indian market," said Meienberg of the Berne Declaration.

The civil society organizations who met with Prince Hans Adam delivered a personal message from Dr. M.S. Swaminathan, one of the world's leading rice experts, former director general of the International Rice and Research Institute, former independent chairman of the FAO Council, and recipient of the World Food Prize. Swaminathan wrote:

"Please convey to the prince my view that marketing rice varieties developed by crossing semi-dwarf varieties with Basmati rice from India/Pakistan, as American Basmati is unethical. This is designed to kill even the limited opportunities which poor developing countries have for farm exports. I hope the Prince will not be a party to this." -- M.S. Swaminathan

Dr. Swaminathan is not the only high-profile individual who opposes the patent. In June 1999 the president of the US-based Rockefeller Foundation, Dr. Gordon Conway, made a speech to the Board of Directors of Monsanto, in which he stated that the basmati patent is viewed as an "unreasonable" intellectual property claim on crop varieties or traits of distinct national origin. Conway warned, "One might also foresee the possibility of legal actions in the US and Europe against companies that claim intellectual property rights on such traditional crop traits." The Rockefeller Foundation has invested over $100 million dollars over the past 15 years in plant biotechnology research -principally for rice.

RiceTec's Basmati Losing Ground? Earlier this year the The Economic Times of India erroneously reported that RiceTec, Inc. had entered into a partnership with US-based Uncle Ben's, Inc. - the world's leading manufacturer of rice products. Uncle Ben's is a wholly owned subsidiary of Mars, Inc., a $14 billion multinational food giant. In reality, Mars, Inc. is clearly distancing itself from the RiceTec controversy. Alice Nathanson of Mars, Inc. told RAFI that her company is not involved with RiceTec. "Although we do have basmati, it is purchased only from Pakistan and India," said Nathanson. India exports approximately 45,000 tonnes of basmati to the US annually.

The United Kingdom's Ministry of Agriculture Fisheries and Food (MAFF) recently performed a DNA analysis of basmati rice which concludes that RiceTec's two "basmati" style products, Kasmati and Texmati, have a genetic profile with "much more similarity" to US long grain varieties than South Asian Basmati samples. The report concludes, "Analysis of both Kasmati and Texmati in this study have shown that these varieties can both be easily distinguished at the genetic level from Indian or Pakistani based varieties." The DNA analysis conducted by the UK government confirms that it would be more accurate and honest for RiceTec to market its product as a US long grain rice, instead of using the term basmati.

In its Code of Practice for rice, the UK's Grain and Feed Trade Association, one of the world's largest importers of basmati rice, also concludes that basmati rice "shall only be applied to the long grain rice grown in India or Pakistan." Similarly, Saudi Arabia allows basmati rice originating only in the Indian sub-continent to be sold as basmati rice." Saudi Arabia is India's largest market for basmati rice, accounting for 68% of India's basmati exports in 1994. A Greek court reportedly rejected a trademark application by RiceTec for rice it described as American basmati.

Conclusion There are numerous legal and technical concerns with respect to RiceTec's patent and its use of the name basmati. Ultimately, RAFI, the Berne Declaration and the Gene Campaign conclude that the core issue is morality. Farmers have selected and bred aromatic rice over generations. It is indecent and unacceptable for the genius of millennia to be usurped by an US-based company (controlled by European royalty). RiceTec's patent is predatory on the rights and resources of South Asian farmers, and it should be abandoned.

Action Needed

1. RiceTec should abandon US patent 5,663,484 and cease using the term "basmati" on all of its rice products and lines.

2. In the event that RiceTec does not abandon its patent, the Indian and/or Pakistani governments should immediately challenge the US patent on grounds that it is technically flawed and morally unacceptable.

3. Protection for geographical indications for agricultural products should be strengthened at the national level and under TRIPs.

4. Civil society organizations should continue campaigns to educate consumers about the basmati patent, and to generate awareness about larger issues of life patenting and biopiracy. These campaigns include, for example:

Peoples' Movements & NGOs in Southeast Asia (a broad coalition coordinated by MASIPAG) issued a statement to the WTO calling for "No Patents on Life! No Patents on Rice!" For more information, contact MASIPAG/Farmer-Scientist Partnership for Development. Email: masipag@mozcom.com In Thailand, the Thai Network on Community Rights and Biodiversity (BIOTHAI) has launched a campaign to protect the future of Jasmine rice. Contact: biothai@wnet.net.th In Europe, the work on basmati is coordinated by the Berne Declaration. In Canada, the Basmati Action Group is calling for a North America boycott of RiceTec products, and campaigns actively against life patenting. http://www.eciad.bc.ca/~lolin/basmati/home.html email: basmati-action@sfu.ca RAFI is working on the basmati rice campaign and other biopiracy issues in conjunction with SEARICE (Southeast Asia Regional Institute for Community Education) and its partners in Southeast Asia.

For more information, please contact:

François Meienberg, The Berne Declaration
Tel: 41 1 277 70 04
Fax: 41 1 2 777 001

Hope Shand, RAFI
Tel: 919 960-5223
Fax: 919 960-5224
http://www.rafi.org

Suman Sahai, The Gene Campaign
Tel: 91 11 6517248
Fax: 91 11 6969716