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afrol.com, 13 November - The Indian Government is currently fighting an important legal battle against biopiracy, bound to set precedence in defining the legal rights to plants breaded for centuries by local farmers all around the world. India is, so far successfully, contesting RiceTec's patent claims on Indian basmati rice genes. Parallel African cases are to be expected. In 1997 the Texas based RiceTec Inc. obtained Patent No. 5663484 from the US Patent and Trade Mark Office (PTO) on Basmati rice lines and grains. The Research Foundation for Science Technology and Ecology (RFSTE) at Delhi, India along with others filed a case in public interest in the Supreme Court of India on March 4, 1998. On this basis, in June 2000, the Indian Government filed a "request for Re-examination" at the US PTO, claiming that the patent is in violation of sovereign rights of India, which include the indigenous and inherent knowledge systems of its farmers. Because of the pressure built up by people's movements on the issue, the American Company RiceTec withdrew claims 4, 15, 16 & 17 from its patent. Also the US PTO has opened up all the claims in the patent i.e. claims 1 to 20 for re-examination. The Government of India has until November 8, 2000 to file a reply in its case at the US PTO. "The next step is to have all the claims revoked, RFSTE tells afrol.com. Basmati is a top-quality rice from the northern provinces of India and Pakistan. The word means “fragrant earth”, and the rice is a slender aromatic long grain variety that originated in this region and is a major export crop for both countries. It has been cultivated by farmers for centuries on the foothills of the Himalayas - in Punjab, Haryana, and Uttar Pradesh. - Since the patent was filed in the US, it would have conferred RiceTec sole monopoly over the marketing of rice grain possessing the said novel traits there. Theoretically, RiceTec would have been able to block our exports of basmati rice to the US any time, since commercial sale of grains with similar attributes would have tantamounted to an infringement of the patent granted to the company, a Commerce Ministry official commented on the ongoing case to the Indian newspaper The Hindu Business Line. This would, in turn, have hit Indian basmati exports to the US, annually amounting to 40,000-50,000 tonnes, worth around $30 million, according to the same newspaper. According to TWN, Thailand is worried that its famed jasmine is the next to be patented. Thai legislators are working to protect the nation's fragrant rice under a trademark before RiceTec or another foreign company acquires such certification. Biopiracy - When companies find a product they want to market, they almost always seek to protect it with a patent, in order to gain a monopoly on commercialising it, the report goes on. "In order to patent a product, it must be considered to be novel (i.e. a discovery) and to involve an inventive step. Many commercial products based on indigenous knowledge do not fulfill these requirements because they are not new to the communities that supplied the knowledge about them and companies often simply extract the chemical of interest, but companies and patent offices often conveniently ignore this." Biopiracy ins when these companies claim patented rights to innovations made by local farmers over centuries. According to GRAIN and Gaia, "when these discoveries are patented, complete or effective ownership is vested in the bioprospecting company, not the source country. Communities derive a great deal of financial and, more often, non-financial use value from biodiversity. But for companies, it is the patent that is of value, not the plant. The value of Southern biodiversity lies, for them, in the creation of intellectual property (ie gene and compound patents). Once the intellectual property is established, economic logic dictates that commercial supplies of a product will be drawn from the cheapest and easiest route possible." The case of Namibian harpago Harpago, a medicinal plant from Namibia, South Africa and Botswana, is growing in popularity in Northern markets. It is also known as Devil’s Claw or Grapple. US consumers pay more than US$ 700 per kilo of harpago extract. Most harpago on the international market comes from Namibia, where collectors are paid between US$ 0.16 and US$ 0.66 per kilo of dried plant material. Harpago leaves Namibia at between US$ 2.30 and US$ 3.28 per kilo, Cyril Lombard, from CRIAA SA-DC, informed GRAIN. Based on these figures, more than 99% of the value of harpago trade is captured by European and US companies. Of the approximately 1% that accrues to Namibia, only about 0.06% typically goes to the farming families that collect the plant. The African families struggling to make a living in the harpago business hope that over time they will get a fairer deal. according to GRAIN. Says Lombard, "What the present suppliers of this raw material want is so basic, yet so difficult to achieve. They want decent prices, they want to be kept in the supply chain in the longer term even if the resource [can be] eventually sourced from cultivated supplies, and they want to gradually do more and more value-adding in-country." Meanwhile, herbal medicine companies are busily patenting methods to make extracts and pharmaceuticals from harpago, thereby making sure that these aspirations will not be realised. Recent
"Intellectual Property Right" claims on harpago include Choongwae Pharmaceutical of South Korea (US 5929038), Finzeberg Nachfolger GMBH (WO9744051), and Willmar Schwabe, Germany - part owner of Natures Way company (WO9734565). To Cancellation of Patent Number 5663484 wrongly granted to RiceTec for Basmati rice lines and grains ATTENTION: Mr. John Doll, Director Ms. Paula Hutzell, Supervisor Ms. Melissa Kimball, Examiner The patent granted to RiceTec for Basmati rice lines and grains is a blatant case of biopiracy - the pirating of genetic material, biological resources and indigenous innovation of Third World countries. The evidence provided by India in the re-examination of the Patent No. 5663484 shows that not only the grain, but the seeds and plants which produce the grain have been bred and cultivated over centuries in India and Pakistan. Women peasants in these countries have been the seed breeders and the selectors. They have freely shared the seeds resulting from their innovation with gene banks and breeders across the world including the Americas. It was through this free sharing that RiceTec got access to Basmati rice. RiceTec now claims to have invented the Basmati "rice plant", the "seed from said plant", "rice grains from rice seeds", the "method of selecting a rice plant for breeding or propagation" and the "cooking" of a sample of said grains! These are either creative regenerative functions of nature or innovations of Asian women farmers who have engaged in this for centuries. RiceTec has withdrawn claims 4, 15, 16 & 17 related to the Basmati grain. In the light of evidence provided by India, which was not available to you when the patent was granted, we urge you as patent examiners to cancel all claims 1 - 20 in the present case. What is at stake are rights of millions of farmers in Asia and the Americas, the biological and intellectual heritage of the people of the Indian sub-continent and the integrity of the US PTO. If the US PTO does not strike down the patent in its entirety, it will lose its credibility as an institution for identifying and rewarding genuine inventiveness and novelty and will acquire a reputation as protector of biopirates like RiceTec. Anticipating your careful reconsideration of the Basmati Patent. Yours sincerely, [signature]
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