2. Amendement
to Patent Laws
(A) Geographical Indications Act
The Patent Office mandarins say Ricetec can use the basmati appellation
"because it is not a trademarked named or a geographic indicator,"
unlike champagne or port, which are specific to a region. They doubt
if the situation would change even if India enacted new laws unless
basmati is recognised as a region. John Doll, Director of Biotechnology
at the USPTO says "Basmati is not a geographic indicator even
in India. It is now grown all over India and Pakistan and even in
Thailand".
It is believed in certain section of legal experts that there is
still tremendous scope to concretise India's rightful claim on basmati
in the three categories of patents, trademarks and geographical indications
by taking a proper legal recourse including its attestation under
the Lanham Act in the US. The patent and trademark attorney with the
corporate law group Krishna Sarma says "it is amazing that India
has steadfastly refused to do anything concrete and result oriented
to protect its purported interests in the term Basmati when it could
get protection as a 'certification mark' under the Lanham Act in US.
In a blueprint she has prepared on what should be India's future
course of action on the subject, she said India could be proactive
on all the three fronts of patents, trademarks and geographical indicators.
Sarma said though US has no separate legislation for protecting geographical
indication, under section four and 45 of the Lanham Act certification
marks were used to attest good which come from the region named. Citing
example, she said tea bearing the name Darjeeling was protected as
a certification mark and must finds its origin from that region or
risk trademark infringement. Basmati producers could take this cheap
step for protection. Simultaneously government should give protection
under Geographical Indications of Goods Act, 1999 which though restricted
to Indian territory gave the country the legitimacy to demand reciprocal
protection in other jurisdictions. WTO's trips agreement disallows
protections of geographical indications if the products were not protected
in the country of origin.
Officials said the withdrawal of certain claims by RiceTec comes
as a relief, but India must make all-out efforts to protect its products
of specific geographical indications such as Basmati rice through
the legal framework now available under the Geographical Indications
Act. Protecting the basmati 'brand' is important for India. However,
we have failed so far to get basmati as a geographical indicator (like
Europe has done with Scotch, Champagne etc.). Geographical indicator
would have meant that only rice grown in India/Pakistan can be called
Basmati. Basmati originates in Karnal and Dehra Dun but India and
Pakistan have been unable to pinpoint exact regions as well as submit
characteristics of the rice which is required to get geographical
indicator registration. We have been in a sense unable to get a 'trademark'.
Calling for laws for protection of bio-diversity which is specific
to India due to its geography, the President of the forum for biotechnology
and food security, Devinder Sharma said though the country is fighting
in the WTO for protecting basmati under the geographical indicators,
it has not yet framed norms for the Geographical Appellation Act,
notified in December 1999. According to Sharma, now that USPTO has
passed the ruling, basmati cannot be protected in the US. But, these
rules, once framed, would help in protecting other things which are
traditionally important for India, like alphonso mango, Kanjeevaram
sarees and Darjeeling tea.
Dr Mangla Rai, deputy director general for crops at Indian Council
of Agricultural Research asked the government to frame and implement
laws sooner than later on plant variety protection, bio-diversity
and geographical protection. Had the geographical protection law been
there, RiceTec could not have branded its rice lines as "basmati
rice lines and grains" in the first place, as the law would have
protected basmati on the basis of geographical indicators, Rai said.
Once laws on bio-diversity and plant variety are made, any country
using Indian germplasm to evolve new varieties, will have to pay India
and share benefits of the outcome.
(B) Enable Patenting of Plant Hybrids
Many activists are aghast at what they perceive as a blatant case
of bio-piracy (Hybrid variety of basmati patented by RiceTec) although
there is no law against using original strain to develop hybrid varieties.
It is to be recalled that much of India's green revolution was engendered
by strains acquired from other countries. More fundamentally, rice
itself traces its origins to former Mesopotamia and not to the US
or even India. Experts in the field say the idea of developing hybrids
using an original strain is widely accepted worldwide and is beyond
dispute. Ironically, India itself developed a hardy variety called
Pusa basmati by transferring a dwarfing gene from a Taiwanese semi-dwarf
variety called Taichung Native 1.
The second aspect of the amendment required in our patent law is
to allow patenting of improved varieties upon the existing material.
This would allow the patenting of hybrids, the results of plant breeding.
US law allows a company to use basmati type material and come up with
new lines. India can also come up with a law and improve upon existing
material from other countries and claim intellectual property rights
on them. India itself does a lot of research in breeding. In fact
Indian scientists would want protection too.
3. Improve Patent Awareness
Patent awareness among scientists, technocrats, and legal experts
is emerging as an important capability for a nation without which
in the new WTO era it would be difficult for a developing country
like India to survive in trade and commerce. R A Mashelkar, the Director-General
of the Council of Scientific and Industrial Research and a long-time
advocate of patent literacy views the basmati episode as a yet another
provocation, after turmeric case, to have a far greater patent awareness.
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