Patenting rice: A matter of serious royal concern
Bangkok Post, 29 June 2005
FOCUS / PATENTING RICE
A matter of serious royal concern
The prospect of including in many FTAs, especially the Thai-US one, issues like intellectual property and agriculture, could have implications on the survival or disappearance of the Thai rice culture
By JADE DONAVANIK
Early this month, Dr Sumet Tantiwechakul, secretary of the Chaipattana Foundation, conveyed a message to the Thai people that His Majesty the King was quite uneasy on the matter of ’’rice patents’’.
In addition, His Majesty would like serious action to be taken without delay in order to keep Thai rice strains in the possession of Thai people, especially farmers — the backbone of the country — and not subjected to the proprietary rights of profit-seeking organisations.
Following the royal concern, Dr Sumet looked into significant points and is currently exploring the possibility of establishing an organisation to oversee rice issues, in particular those related to intellectual property rights.
Several groups of non-governmental organisations dealing with a comprehensive range of rice matters were encouraged to think of threats to the fate of Thai rice, and did so during a recent seminar on the future of Thai Hom Mali Rice under the Thai-US Free Trade Agreement (FTA).
The story of Hom Mali rice has been a never-ending series. Every time the rice came under threat of possession by others, all concerned parties in Thailand, particularly the governmental offices, ran around like fire brigades trying to put out the flames. But there has never been any specific, long-term action or proposal to put such issues on the national agenda. Has there actually been any thought that the prospect of including — in many FTAs, especially the Thai-US one — points like intellectual property and agriculture could have implications on the survival or disappearance of the rice culture?
Maybe we have not yet realised the adverse effects that may stem from the misapprehension and misperception of intellectual property protection. Of course, these rights ought to be respected, but to the extent that they support development, not undermine it. Granting intellectual property protection, such as plant patents, while the country is in an infant stage of plant biotechnology, simply puts the people at a disadvantage in comparison with countries that have an advanced biotechnological industry like the United States.
His Majesty, who understands this point clearly, and so dearly cares for the farmers, therefore, called for a solid plan to be formed to cope with the issues of rice patenting. We should bear in mind how knowledgeable HM the King is about patents and how much importance he attaches to them. This is evident in the several patents he has obtained for his own inventions. (His Majesty has also been granted foreign patents for these same inventions.) His Majesty recognises that patenting in high technologies, especially those dealing with life-forms, must be taken very carefully and only when society understands the consequences sufficiently.
Regarding patenting issues, India’s experience may be a good example of how a rice patent can become a big pain in the neck. The story began around the 1990s when the United States Patent and Trademark Office (USPTO) issued several trademarks and patents to many rice lines from a company called RiceTec, Inc. The most problematic of all was US Patent Number 5,663,484 (hereinafter 484).
After RiceTec obtained Patent 484 in November 1997, the company started marketing the rice line that was protected under the patent. It was not until 2000 that the Agricultural and Processed Food Export Development Authority of the Indian Government’s Ministry of Commerce found out about this and filed a petition to the USPTO, calling for reconsideration of the issuance of Patent 484. Had the patent not claimed one of the country’s most treasured genetic resources, the Indian government would probably not have had any problem with it. Unfortunately that patent covered the proprietary right on Basmati rice lines and grains.
Now the tale is quite clear — Basmati rice to India is just like Hom Mali rice to Thailand.
Regarding the petition, the response of the USPTO to the Indian government was not bad. Among the problematic 20 claims of the patent, 16 were retained with some revisions to the context. But was this really a victory for India and her farmers in this patent battle? It depends from which angle one looks at it.
On Aug 21, 2001 some days after the USPTO announcement, the Research Foundation for Science, Technology and Ecology (RFSTE), a US organisation that supported the Indian government in the fight for Basmati, declared in a press conference titled ’’RiceTec Loses in Basmati Battle’’ that the outcome of the challenge was a victory for Indian farmers.
In particular, the title of the patent as well as the main claims were changed from ’’Basmati Rice Lines and Grains’’ to ’’Rice Lines Bas 867, RT 1117, RT 1121’’.
Consequently, Patent 484 cannot bar Indian farmers from activities they have been carrying out with regard to Basmati rice, such as growing, keeping seeds, exchanging cell lines; and the rice paddies, sales and export of the rice have been saved.
On the other hand, a report ’’RiceTec Sees Partial Win over Patents, Indian Government Angry that Basmati Types OK’d’’, written by David Ivanovich in the Houston Chronicle of Aug 24, 2001 held that the company was not really hurt since the patent was retained with sufficient claims to still cover rice with the characteristics of Basmati.
One may have many different feelings and thoughts towards the Basmati story, but Dr S A Siddiq of the Indian Council of Agriculture Research was probably right that this was only the very first step in the journey. Basmati rice, he believed, would remain the subject of biopiracy for an unpredictable time. The prerequisites of patent applications — that is novelty, non-obviousness, utility, and enablement — still left room for old genetic resources to be turned into new inventions, like old wines in new bottles.
Shifting our concentration back to Thailand, it might be true that Hom Mali rice itself may not be patentable on the grounds it is not new. But what about its fragrant genes, its cell lines, and many other physiological and genetic factors? Are they not patentable as well? Many of us would doubt that, specifically taking into account the Thai-US FTA.
British Prime Minister Tony Blair said in a speech to the European Union on June 23, 2005 that in five years India’s biotechnology industry will increase five-fold. Despite the increasing capacity to develop new technologies dealing with living matters, such as plant biotechnology, the Indian government pays utmost attention to the conservation of genetic resources and to the protection of traditional knowledge and farmers’ wisdom.
What are we doing? Look into our rice bowl and imagine that tomorrow those grains before us will become rice lines belonging to some foreign companies, and that our farmers will have to pay for the patent royalty of the seeds they grow to feed us. What would be a good answer to give to His Majesty the King, the farmers, and Thai people? How ironic would that be?
Jade Donavanik is an expert in intellectual property rights with Manothai-Jade and Associates Law Office.
