LEGAL GUIDE
Written by attorney Frederic March Douglas

International IP Rights Regarding Plants Native To India: Texmati = Basmati? (Part 3)

International Intellectual Property Rights Regarding Plants Native To India: Texmati = Basmati? (C) Frederic M. Douglas, April 1999; 2010. All Rights Reserved. By Frederic M. Douglas, Esq. [email protected] (Part 3)

IV. Commercial Exploitation of Plants and Plant Products

India has a long history of using herbal products for medicinal or cosmetic purposes. However, India has not attempted to seek commercial gain from this knowledge until recently. Some Indians believe that U.S. companies are seeking to exploit Indian knowledge of plant uses.

A. Neem -- Natural Pesticide

Indian farmers have used neem, a plant native to India, as a pesticide for hundreds of years. The farmers boil the seeds, and then let them soak overnight. The resulting foam is removed and used to kill insects. Once obscure, the neem tree is now the focus of global commercial and scientific attention.

India's Neem Foundation promotes the neem tree as a wonder plant that provides: a natural pesticide; medicine for skin disorders, pain, fever, and infection; firewood; birth control; and a device to protect the Taj Mahal from environmental damage. The U.S. Environmental Protection Agency approves various neem-based pesticides. Agridyne Technologies of Columbia, Maryland markets a product, "DAZA," manufactured in a manner similar to the Indian farmers' method.

Environmentalists attempted to convince the U.S. Patent and Trademark Office ("USPTO") to cancel Agridynes's patent for DAZA based on a lack of novelty. The USPTO refused the request to cancel the patent because the challenge offered little well-documented evidence. Agridyne also claimed that it developed a method to make neem's active pesticide ingredient last longer than the normal two week period. The European Patent Office determined that the neem patent was included in prior art.

B. Turmeric -- Yellow Spice

With Pharmaceutical Uses In 1995, two U.S. scientists, employed by the University of Mississippi Medical Center, obtained a patent for the use of turmeric to help wounds to heal. The USPTO canceled the patent in 1997 after a re-examination determined that the patent application did not satisfy the novelty criterion.

The challenge to Agridyne's patent was led by India's Council of Scientific and Industrial Research ("CSIR"). The CSIR filed a petition, through a U.S. legal firm, stating that turmeric was used to heal wounds for hundreds of years. The CSIR supported the petition with 32 published papers. The CSIR compared the successful petition to cancel the turmeric patent with the failed attempt in the neem situation. The CSIR's director general, R.A. Mashelkar, said that Indians have nothing to fear in protecting a traditional knowledge base when a patent challenge is well argued and well supported.

C. A Successful Compromise

A conflict exists between plant variety rights protection and biodiversity protection. Biodiversity advocates believe that drug companies cannot take a country's genetic resources without compensation. Some see this clash of plant breeder rights and biodiversity rights as incompatible. However, this conflict was resolved in Thrivanthpuram, India over a herbal preparation from a medicinal plant, Trichopuszeylamicsu.

This plant has been used by the Kani people in India, for many years, to treat fatigue. The Tropical Botanical & Garden Research Institute ("Institute") found that the plant had properties that enhance the human body's immune system. Not wanting to wait the lengthy time to obtain an Indian process patent on the medicine, the Institute sought out the Kani people. They negotiated a license to manufacture the medicine from the Trichopuszeylamicsu plant. The Institute then sold its rights to a drug company for a sum plus a royalty for the following seven years. The Institute put fifty percent of the proceeds in a fund for the Kani tribe's welfare. This agreement led to a compromise that ensured that the Kani people were satisfied and private plant breeder rights were awarded.

D. Rice

In the U.S., most people eat and enjoy rice occasionally. In many parts of the world, rice is the chief food of millions of people. Indeed, in many countries, the word for rice is also used as the word for meals or food in general. Some sources believe that the cultivation of rice started in India. One fact that supports this statement is that the Ganges and Brahmaputra rivers in eastern India overflow each spring, providing rice paddies with necessary water. Also, archaeological evidence suggests that an advanced system of rice cultivation existed in China and India 7,000 years ago.

E. U.S. Rice Industry

The U.S. is a major producer and exporter of rice. Rice is grown in the U.S. mostly in Texas, Louisiana, California, and Arkansas. Many consider the U.S. to have the highest quality rice in the world.

F. Basmati Rice -- Anything Else Is Just Rice

Basmati rice, unlike usual types of rice, is aromatic and has an extra long grain. The aroma is described as nut-like or reminiscent of popcorn. Basmati rice is usually consumed only on special occasions. Basmati rice is indigenous to India and Pakistan. In India alone, at least 400 varieties exist.

Basmati rice comprises four per cent of India's export earnings. India earns US$800 million annually from basmati rice exports. Ten percent of these basmati exports are consumed in the U.S. In world markets Indian basmati rice is the most expensive rice available. In Europe the best U.S. rice fetches a price of US$500 per metric ton. Indian basmati goes for US$1200 per metric ton.

The European Union gives Indian basmati rice a duty discount of US$300 per metric ton. Soon the European Union may cease giving Indian basmati rice a duty discount. In this event, perhaps European consumers will choose quality U.S. rice from companies like Uncle Ben's over Indian basmati rice.

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