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When the Indian government lost its battle against the patenting of the famed basmati (fragrant earth) rice by a US firm last week, it compromised the rights of millions of farmers in the developing world, say food security activists.

''The case was badly handled at the United States Patent and Trademark Office (USPTO) by the Indian bureaucracy,'' said Suman Sahai, director of Gene Campaign, a non-government organisation (NGO) which helped draft the challenge.

She said rice varieties like Jasmati (Thai jasmine rice) as well other plants of commercial interest to farmers in different developing countries could be the next target for biopirates.

The USPTO order in which patent examiner John Doll finally dismissed India's challenge to the patentability of long-grain, aromatic basmati rice was made on Aug 14, but news of the defeat has only just begun to trickle in.

According to food security campaigner Devinder Sharma, besides showing up the inadequacy of Indian system in protecting its own farmers, the case has exposed the integrity of the USPTO and the flaws in the patent system.

''The patent granted to RiceTec (company) for basmati rice lines and grains is a blatant case of biopiracy.

Credibility lost

Observers say USPTO has now lost credibility as an institution for identifying and rewarding genuine inventiveness and novelty, and will henceforth acquire a reputation as a protector of ''bio-pirates'' like RiceTec.

The Texas-based firm was granted a patent by the USPTO in 1997 to label as basmati the aromatic rice it grows and exports. It took prodding by NGOs to get the Indian government to challenge it.

Traders' organisations filed public interest litigation in the Supreme Court in March 1998, seeking directions to the government to challenge the RiceTec patent at the USPTO.

But the Indian government was quick to claim victory when RiceTec withdrew four of the 20 claims it made with the USPTO. These related to basic basmati qualities such as elongation of the grain, cooking characteristics and aroma.

But RiceTec's withdrawal proved to be a gambit and the Indian government failed to convince the USPTO during re-examination proceedings as to why RiceTec's claims should not be deemed 'free of prior art'.

According to officials at India's Commerce Ministry, technically, RiceTec can now block Indian exports of genuine basmati by claiming infringement of the patent it owns on aromatic rice.

Annually, India exports an average of 50,000 tonnes of basmati rice worth more than US$30million to the United States and this year it expects to export a total of 100,000 tonnes, the bulk of it going to the Saudi Arabia and other countries in the Middle East.

India's sole competitor for the world basmati market, Pakistan, exports another 50,000 tonnes annually and it too is likely to be affected by the RiceTec patents.

Pakistan withdrew after lawyers in the United States demanded a deposit of US$500,000 to fight the case at the USPTO. Indian and Pakistani farmers export basmati and use the money to buy twice as much ordinary grain for their own use.

Test case

According to Sharma, India and other countries would now have to seriously push for an extension of geographical indication rules under Trade Related Intellectual Property Rights (TRIPS), which now protect wines and whiskey, to fine agricultural products such as basmati and Darjeeling tea.

The basmati case has attracted worldwide attention, with NGOs viewing it as a test case for biopiracy at a time when developing countries are increasingly falling victim to it.

A global coalition of 90 NGOs that petitioned the USPTO to withdraw the patents granted to RiceTec included the UK-based Action Aid, World Wildlife Fund International and the Berne Declaration.

Last week, the lawmaking lower house of Indian Parliament or Lok Sabha passed the Plant Varieties Protection and Farmer's Rights Bill, which allows farmers to retain the right to sell seeds.

Gene Campaign's Sahai, who helped formulate the bill, said opposition to the bill, supported by most political parties, came from the bureaucrats in the Ministry of Agriculture and government scientists.

The above article was first written for the Inter-Press Service (IPS)