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The
decision of the United States Patents and Trademarks Office (USPTO) to
grant biotech firm RiceTec a patent that accepts five claims relating to
three ‘novel rice lines' has once more triggered a controversy in the
country. Parliament witnessed a heated debate in which the opposition
accused the government of having through its negligence created a
situation where India's exports of basmati rice traditionally grown in
India and Pakistan would be adversely affected. The government, needless
to say, refuted the allegations, and declared the development a victory
on a number of grounds. First, the decision of the USPTO was arrived at
in response to India's request to re-examine 3 of the originally
accepted 20 claims made by RiceTec. Second, the number of claims upheld
by the USPTO amounts to just five. And third, these claims are seen as
relevant not to "basmati rice and lines" as originally defined, but to
"novel rice lines" BAS867, RT1117 and RT1121, which are seen as
varieties that deliver grains "similar to or superior to good quality
basmati rice". What is of interest is that even "expert" NGO opinion and
the media are clearly divided on the dilatory question as to whether
India has won or lost the legal battle.
The debate now centres on whether the specific form in which RiceTec has
been given a patent on rice lines is in keeping with patenting "norms"
and whether India's interests as an exporter of basmati right have been
affected adversely. The larger issue of whether "rice lines" deriving
from varieties traditionally developed by cultivators located in
specific geographical areas should be patentable at all is being
ignored.
The defence for any patent rests on the need to provide intellectual
property rights to developers of new technologies, who have undertaken
risky investments to achieve their goal and in the process provided
society with new or better products or processes. Further, such
technologies are seen as providing substantial ‘external' benefits to
society, far more than captured by prices or by the private benefit
accruing to the innovator in terms of profit. Unless such investments
are protected and profits on investment assured, it is argued,
technological change would be much slower or absent, implying
considerable social loss.
Even this argument is fraught with problems. It is by no means clear why
investments in agriculture by the government and the private sector,
which are also quite risky and which also provide society substantial
‘external benefits', should be subjected to the "winds of international
competition" through liberalisation, even while investments in
innovation are protected.
Moreover, in the case of plant varieties derived from traditionally
developed ones, the net accretion in terms of new knowledge is limited
relative to the existing varieties. But since the traditional varieties
developed over time as a result of cultivator practices have substantial
common property characteristics, they are not patentable by any single
agent. On the other hand "commercial plant breeders" like RiceTec who
build on traditional knowledge, without having to pay for it, and manage
to "differentiate" their product to render it "novel" enough to be
considered for a patent, obtain the protection unavailable to the source
product.
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