Longform

RiceTec Paddy Whack

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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.

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Brad Tyer