By Jeff Balke
By Ben DuBose
By Ben DuBose
By Sean Pendergast
By Sean Pendergast
By Calvin TerBeek
By Jeff Balke
By Jeff Balke
As international trade protests go, Alvin, Texas was no Seattle. The demonstration was scheduled for 3:30 on a Thursday afternoon in late October, and if any locals were unemployed at that hour, they were certainly not standing at the intersection of FM 2403 and FM 2917 in front of the RiceTec company's generic beige new corporate office.
The participants who did show were mostly from Houston and, judging by their Green Party bumper stickers, had learned of the day's event from one of the many flyers passed around outside Ralph Nader's September rally at the University of Houston. There were a few older ladies, a few college-aged youths, several representatives of the Houston Catholic Worker wearing protest t-shirts screened with "Stop BioPiracy" on the front and "Stop Global Exploitation" on the back, two reporters, and a photographer. When head-protester Vandana Shiva arrived fresh from Hobby Airport, chauffeured by an Austin supporter, it was already close to four in the afternoon, and the completed crowd totaled maybe a dozen.
Once Shiva arrived, advertised as a "visionary, author, activist and eco-feminist," the protesters massed around her short, brown, sari-draped figure on the grassy shoulder of 2917's northbound lane and unfurled their banner -- "No to BioPiracy -- Hands Off Basmati"-- toward the blacktop. After several passing trucks failed to honk, the protesters turned the banner to face the tinted windows of RiceTec, a note-taking secretary standing in the front breezeway, and the distant and disinterested glances of several local deputies called out to keep the peace, just in case. The Catholic Workers and Shiva took turns on the megaphone:
"Don't steal the knowledge of Third World grandmothers!"
"We told you once! We told you twice! Hands off basmati rice!"
Invited to converse over the intervening chain-link fence, the RiceTec note-taker retreated instead back through the front door. Inside, RiceTec brass, including CEO Robin Andrews, Vice President of Marketing Richard Long and P.R. hired gun Bruce Hicks -- all white men -- gathered in a conference room, opened a window, and took turns marveling at and doubtless cussing Shiva's case: against the patenting of life forms, against the theft of indigenous knowledge, against the violation of geographical appellations, against the legal integrity of RiceTec's sole patent, against trade globalization, against intellectual colonization, against monopoly agriculture, against Third World debt, against royalty payment for seed, and, neither last nor least, against RiceTec itself, which, in the relatively routine business of developing and patenting an (arguably) new strain of rice, had stepped solidly into a steaming pile of global gray area that left the company's boots smelling like something Monsanto Corp.'s cat dragged in.
Through Shiva's eye, RiceTec is a First World devil, gatekeeper of a growing regime of masculine global corporatization that will sacrifice human liberty and threaten humane survival, especially that of poor women, for profit. As if in exorcism, she demands that the devil recant his hold on the company, that it abandon its claim and change its name.
To RiceTec, Shiva is a perhaps well-intentioned but misguided pest who doesn't understand patent law, confuses issues, and willfully misinforms her audience for dramatic effect. From very early on it was clear that RiceTec, seeing itself as mere infantry in any global trade wars, had no intention of unilaterally disarming itself.
The two sides could stand in the middle of Farm to Market 2917 all day long -- both talking entirely different sorts of good sense -- and neither would once think to change lanes. Their difference of opinion is so profound, their points of reference so disparate, the foundations of their arguments laid on such distant lots, they can not agree on the seemingly simplest of propositions.
Before leaving Alvin to prepare for a 7 p.m. lecture in Houston titled "WTO, Basmati Rice & the Stolen Harvest," Shiva walked across the road and looked out into a shaggy field.
"They look unhappy," she said. "The rice plants. Ours at home look very happy."
"That," RiceTec reports, "is because it's not rice. That's our test field, it was harvested in August. That's weeds."
f RiceTec CEO Robin Andrews and Vandana Shiva were sitting on either side of you in a movie theater, that would be weird.
Shiva's manner is plump and motherly. She touches you on the forearm to signal comfort while she patiently explains the alarming proposition of the world going to hell in a handbasket, and probably not even a handbasket woven by indigenous peasants, but some mass-produced piece of crap from Pottery Barn. She has compared McDonald's' business practices to the administrative behavior of the pre-perestroika Soviet Union. She conveys not despair, but faith in the power of activism to halt such progress. She comes across thoughtful, decided, and relentless.
Andrews is a slightly rumpled bean-thin man with the kind of white hair that's called a shock when grown on British heads, which his is, and an exceedingly soft voice that lilts out common-sensicle reassurances that no, the sky's not falling, and if you'll look at the evidence closely and with logic, here's why. He seems to have been trained to avoid outright dismissiveness in public, but his professed bemusement and befuddlement over the flap has a quietly snorting side, too.
Andrews had been a deputy chairman of ICI Fibres and president of Celanese Plastics and Specialties, both in the UK, before becoming president and CEO of Farms of Texas Company, RiceTec's corporate predecessor, in 1986. He runs a company of approximately 150 breeders and growers and researchers and packagers who brought in about $10 million in revenue last year. Andrews' boss is the reigning Prince Hans Adam II of Liechtenstein, sole owner of RiceTec, Inc., and reportedly the largest private landowner in Austria. Andrews talks about feeding more people more efficiently on less land, even though his primary products are high-end specialty rices. RiceTec's new walls display the trophy for the World Food Prize, awarded to RiceTec employee Hank Beachel in 1996.
Shiva lives in the Doon Valley in the Indian Himalaya, one of the very areas where Indian farmers have been growing the basmati rice so prized by connoisseurs for centuries. In addition to authoring several books, including the recent Biopiracy: The Plunder of Nature and Knowledge, Shiva is variously reported as having abandoned an academic career to pursue activism as a philosopher, ecology adviser to the Third World Network, founder of Diverse Women for Diversity, Director of the Research Foundation for Science, Technology and Natural Resource Policy (a research network for sustainable, bio-diverse agriculture), and founder of Navdanya, a subsidiary devoted to seed conservation and exchange. She is also the 1993 recipient of the Right Livelihood Award, given to champions of environmental and social justice causes.
If what they were arguing about didn't cut to the quick of the same convoluted global issues that sparked the Seattle protests, you could almost think of them as an elderly couple that had grown old enough together to discover they really don't like each other much. They act like grandparents who can't decide what's the shortest combination of county roads and spurs from Tyler to Dallas, talking right past each other, and they've been at it for three years now.
hat RiceTec did is this: The company spent a self-estimated ten years and $3 million to $4 million to figure out how to breed a rice plant that does everything a traditional Indian basmati rice does -- primarily, to smell, taste, look and cook a certain way that commands a premium price in the rice market -- plus one thing Indian basmati rice never did, which is grow in North America. RiceTec researchers found the characteristics they were looking for by crossing seeds donated by India and Pakistan to the World Collection of Germplasm, operated by the Agricultural Research Service of the USDA in Aberdeen, Idaho. There was no genetic engineering, no transgenic transfer, none of Jim Hightower's Frankenfood manipulation. RiceTec applied for a utility patent, the same sort that applies to carrot dicers and guitar tuners, protecting that plant, its grain, its seeds, plants grown from those seeds and so on, and a method of predicting -- arcana to breeders -- a rice's salient qualities by calculating some fresh formulation called the "starch index." The rice is marketed under the trade name Kasmati. A 36-ounce jar goes for about $4.95 in grocery stores.
The U.S. Patent Office concluded that the application described something that was new, wasn't obvious, was useful, which is all that office needs, and granted patent #5,663,484. It offers RiceTec recourse to protection against infringement for 17 years from the date of its issue in 1997, until 2014, in the United States. Then the "invention" will enter the public domain. The theory is that the temporary protection from competition encourages companies -- pharmaceutical and biotech prominently -- to make heavy investments in research, with the hope of getting their investments back.
Vandana Shiva doesn't see it that way at all. She sees a Multinational Corporation that took freely given seeds from her country and bred them into another plant, which poor Indian farmers had been doing for centuries anyway, and had the arrogance to claim it as an invention when it was simply another example of nature's abundance discovered, and had its own arrogant government grant monopoly rights to a corner however small of the world's staple food market. The sheer fact of that, she is sure, bodes ill.
For one thing, she says, the patent is not technically valid, because RiceTec didn't do anything new. For another, RiceTec shouldn't be using the name "basmati" because that name should be protected, like Champagne, for rice grown in particular regions of India and Pakistan. Third, RiceTec's patent creates an unfair competitive hardship for growers of traditional basmati rice in India. And finally, superseding all of the above, the patenting of life forms in any manner by anyone is morally wrong and should not be allowed.
RiceTec, of course, has four defenses, and they are more or less watertight from the strictly logical standpoint as expressed by Bruce Hicks, once a Houston Chroniclereporter, now hired by RiceTec as its spokesman for this single issue.
One: The patent is in point of fact legally valid until and unless it is overturned in a challenge.
Two: "Basmati" rice has been long discussed in the literature and confirmed in a judgment by the USDA to be a generic term, a general classification, like durum wheat. If Vandana Shiva or the government of India or anyone else wants to seek a legal judgment protecting the word "basmati," they are free to do so, and RiceTec will abide by any binding ruling, but in the meantime, RiceTec and a dozen other companies outside India have been marketing products as "basmati" -- RiceTec introduced its popular Texmati brand 20 years ago, and there's a badly named Urumati grown in Uruguay -- for more than two decades now, and no one's ever complained before. And contrary to popular opinion whipped up by protesters, RiceTec's patent does not cover the word "basmati." Only a trademark could do that, and the word "basmati" couldn't be, and isn't, trademarked anywhere.
Three: RiceTec is such a tiny little blip in the rice industry that even if it wanted to put a dent in the Indian rice trade, it would be helpless to do so. Its patent, for instance, doesn't, and couldn't, cover any rice grown in India, which exports more than 500,000 tons of basmati to RiceTec's 2,000 tons in annual sales. Since RiceTec's patent went into effect, Indian basmati imports into the United States have doubled. In fact, RiceTec says, its basmati plant would be a greater competitive threat to Indian producers if it weren't patented, in which case much larger producers than RiceTec would be free to use the company's seed.
The fear that the patent will somehow allow RiceTec to charge Indian farmers a royalty payment to use its seed -- thus domino-ing into Shiva's predictions of increased Third World debt and monopoly consolidation -- is, RiceTec says, a phantom, since the seed, Basmati 786, is specially bred to grow here, not there, and the patent only protects the seeds in the United States anyway.
And on the fourth point, that life-patenting is inherently wrong and morally bad, RiceTec can only throw up its hands and admit to a difference of opinion, pointing to the fact that such patenting has been accepted and legally unchallenged in the United States since 1980.
And it's the life-patenting issue, Bruce Hicks admits, "that overrides to a large degree all of their arguments here. Vandana Shiva believes that there should be no life patenting. RAFI [Rural Advancement Foundation International] and other groups like that believe that there should be no life patenting of any kind. So it wouldn't matter where it came from, how we did it, whether we created something totally new that had no origin, we would still be at odds with their viewpoint. That's why I say the argument really isn't about us. It's the system, their world versus the rest of the world that they're at odds with. We haven't even eaten into the imports, so it must be this fundamental idea, the association of us with broader issues. These are bigger issues than RiceTec. We're just trying to play by the rules."
he rules, of course, are complicated, and disputed, beyond all comprehension. The General Agreement on Tariffs and Trade runs to 30,000-plus pages, and if anyone fully understands the role of the World Trade Organization and the bylaws of the Trade Related Intellectual Property Rights Agreement (of which the United States is not a signatory), they have yet to publish a digestible summary. As a result, the popular imagination -- encouraged by Shiva and like-minded organizations like RAFI and the Basmati Action Group -- has lumped RiceTec's patent in with the whole host of global bogeymen in the contemporary news, from Monsanto's self-sterilizing Terminator seed gene to genetically modified StarLink hybrid corn contamination in the fast-food chain to the vitamin-A-enhanced Golden Rice patent and the looming fear that bio-genetic science is moving too fast with too little regulation and almost no sense of potential consequence to global food supply and culture.
From there, it's just a short leap to an imagined world in which rich, white northern hemisphere corporations steal the biological diversity of poor, dark southern hemisphere peoples, patent them, and gain financial control of the world's medicine cabinets and pantries. Thus protester fears that RiceTec has somehow patented the word "basmati," and so anyone growing basmati anywhere in the world will have to pay royalties to RiceTec (not true), and the appalling but fundamentally misunderstood notion that the starch index portion of RiceTec's patent may somehow be used to prevent Indian grandmothers from cooking their rice in the traditional manner (even less true).
RiceTec, says Shiva, may be entering a joint venture with Monsanto (not true, says RiceTec), "which, as you know, is chasing rice genome patenting, and before you know it they'll have all kinds of fees, trying to make fees on the Golden Rice, on genetically engineered rice, on the rice hybrids, and before you know it you'll have four or five corporations controlling the rice market."
It's not an entirely imagined world, either. U.S. researchers have already tried to patent Neem, a naturally occurring Indian tree, for its pesticidal qualities, and even cell lines derived from a man in Papua New Guinea that showed promise in fighting disease (both patents were overturned after public outcry).
Still, Paul Janicke, of the University of Houston Law Center's Institute for Intellectual Property and Information Law, sees the patent issue as beside the larger point entirely.
"It really has nothing to do with patent law, but it spills over into patent law, where it really doesn't fit. The main objection seems to be: you got the basic starting materials for this invention from us in India and we're not getting anything out of it. At the time the TRIPS Agreement was being negotiated as part of the Uruguay Round, there was another parallel agreement being worked on that did call for all member countries to that treaty to pass legislation providing for fair compensation to indigenous peoples for traditional medicine and crops. Well, the U.S. refused to sign that, and there's no serious movement that we ever will. But many countries did, and it's mostly the southern hemisphere countries who find that if they have patent laws, as most of them do, they're all utilized for the benefit of the rich companies who tend to be in the northern hemisphere."
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."