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Neem, Turmeric and Basmati Patents
Products and processes, originating from neem, turmeric and basmati rice have been patented elsewhere in the World, despite the fact, that they belong to this part of the world; their properties both for their medicinal value and consumer's food preferences are based on indigenous knowledge. These examples illustrate how the provisions of TRIPS and IPRs can influence our trade and industry.
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We will use basmati rice as an example of indigenous knowledge that was patented elsewhere due to lack of registered geographical indications. For instance, in USA the trademark 'Jasmati' was registered in November 1993 and 'kasmati' was registered in June, 1996. A patent (US Patent 5663404) entitled 'basmati rice lines and grains' having 20 claims, was also granted to RiceTec. In June 2000, Agriculture and Processed Food Products Export Development Authority (APEDA), India challenged this patent at the US Patent and Trademark Office (USPTO). As a result, in September, 2000, RiceTec withdrew 4 (of the 20) claims that dealt with the starch content, grain length, chalkiness, 2-acetyl- 1-pyroline content and burst index. On March 27. 2001, the USPTO informed RiceTec that only 3 of the 20 claims (pertaining to three specific rice plants namely BAS867, RT1117 and RT1121 that are not cultivated in India) were allowed, thus suggesting that the 'basmati' battle was at least partly won by India.
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Other IPR tools include 'trademarks' which are used for basmati (e.g. 'Kohinoor' or 'Lal Quila'). Unfortunately, India and Pakistan took no steps to protect Basmati as GI, so that RiceTec has been selling its Basmati under the brand names 'Texmati' and 'Kasmati' although in January 1999, RiceTec withdrew its trademark application filed in UK for 'Texmati'.
In the year 2001, three NGOs also filed a petition with US Federal Trade Commission (USFTC) to prohibit in USA, the use of names 'Basmati' and 'Jasmati' for rice grown in USA.
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This petition was disallowed, on the ground that Basmati and Jasmati were example of aromatic rough rice that were not limited to and did not misrepresent rice grown in any particular country. This means that in the absence of any protection as GI, USFTC did not consider Basmati as a distinctive product only from India and Pakistan.
Thus, there are conflicting reports on the 'success' of the Indian Government in protecting 'Basmati' from patent piracy. It has been argued that we would have better chance of protecting 'Basmati', if the issue is raised concerning trademark and 'geographical indication' (GI), rather than as a case of usurpation of patent rights.
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India can take this issue to the 'Dispute Settlement Body' (DSB) of WTO on the basis of trademark infringement, since a trademark can be used only with the approval of the "original owner" as provided for in the "US Omnibus Appropriation' Act of 1998".
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Unfortunately, Basmati trademark for a particular Indian rice is not protected in India, while Jasmati and Kasmati are the registered trademarks in USA. However the provisions of 'Paris Convention' (India and USA both are signatories of this convention) which directs countries to refuse or cancel registration of trademark, if it is a reproduction, imitation or translation of a well-known trademark (earlier used) as in case of RiceTec's BAS867. Therefore, if the ownership of trademark is based on prior usage rather than registration as GI, India will have an edge in winning the dispute, if and when the issue is taken up with DSB of WTO. Articles 8 and 16.1 of TRIPS also deal with the same issue.
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