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A good case in point is India, where, after much hesitation, patent laws have been modernized on the U.S. model just in the past two years. For years before that, both India and Egypt resisted pressure to recognize U.S. patents, with the pressure coming largely from the U.S. State Department, which threatened to withdraw most-favored-nation trading status unless India and Egypt enforced U.S. pharmaceutical patents. For years, Janicke says, India and Egypt copied their drugs from the U.S. product.
"But both of them have acquiesced now, and the swarms came in, and the State Department made them not only allow patents, but issue them retroactively back to the date when they were issued in the U.S. So tens of thousands of pharmaceutical patents suddenly became effective in India. India is now trying to strike back. They are now reaching into every pocket they can find for reasons to get exclusivity over the stuff that grows there. They're smarting over having to knuckle under to the State Department over patents, and now they're coming back that they have some sort of rights over the starting materials. Their complaint is that they don't get any credit, even though most of the work was done by God or by Indians, and we only did the last tweak."
hile the moral issue isn't likely to be worked out anytime soon, RiceTec's patent has finally been legally challenged. A RAFI newsletter reports that the government of India filed a "request for reexamination" with the U.S. Patent Office in June of 2000, challenging three of the patent's 20 claims, all of which spoke to a quality of rice grain "chalkiness," and none of which affects the core claims of the patent. In response, RiceTec withdrew those three claims plus a fourth also related to grain texture.
"We couldn't verify their tests with our tests," says Andrews, "and we thought if we could, what would we prove? So we said eh, to heck with it, and we abandoned the three claims that they were challenging plus another one. Because we really wanted to tell them, and now other people, that it has never been our intention to prevent the importation of basmati rice."
Still, the patent remains under challenge in its entirety, though identifying the source of the challenge is difficult. Merchant & Gould, a Minneapolis patent law firm handling the case, declined to identify its client, and Houston's Indian Consulate failed to return multiple phone calls seeking comment on the controversy. RiceTec suspects APEDA (Agricultural and Processed Food Products Export Development Authority), a quasi-governmental Indian agency, but E-mails to APEDA seeking confirmation went unreturned.
Janicke notes that 45 percent of U.S. patents are found invalid when challenged in the courts, but RiceTec's has not been taken to court to date. For one thing, such a legal challenge is enormously expensive and beyond the means of most nongovernmental entities.
But until the patent office overturns RiceTec's patent, or the current structure of world trade changes, Shiva plans to continue the fight, with grassroots protests in Alvin, loosely organized boycott manifestos circulating on the Web, and a proposed postcard campaign to supermarkets and food outlets.
And in the meantime, RiceTec is gearing up for the launch, next year, of a new hybrid rice seed, the first of several patent-pending new hybrids in the RiceTec pipeline. The hybrid, according to RiceTec, will reduce farmers' production costs by 15 percent and require less land than currently available seeds.
"That's something," Andrews says, without much hope, "that environmentalists should like."