Patent
Laws on Plant Breeding
Patents are national rights. Some may argue that patenting, as a
philosophy is wrong. Those who believe this say that intellectual
power should serve the human society and should not be used as a tool
for monopoly. There is another school of thought that believes in
patenting but opposes patenting of agricultural practices or innovation
in plant species. They are gunning for both controls on biotech research
as well as the very idea of intellectual property protection. These
arguments are difficult to defend. Agriculture itself is a disruption
of nature as wild rice for example is known to be more nutritious
than cultivated rice. Cultures work at ensuring stable supplies of
food and thus agriculture, chemical farming, and biotechnology came
into existence.
Patents cannot be wished away as ownership of land, ownership of
intellectual assets etc. is practiced by many communities. Even the
caste system is brought into human society as a form of intellectual
property ownership where skills are passed down from generation to
generation and held in custody by a group. Their theory of the 'intellectual
commons' is also dangerous by which they believe that by publishing
the monopoly is prevented in the form of a patent. Aboriginal groups
in Australia fight this on another extreme platform that their knowledge
would be held by them in perpetuity and can never be public knowledge
i.e. they have monopoly rights in perpetuity. In a case like basmati
it is difficult to pinpoint who are the owners as there is no documentation.
The West sees patents as an essential tool to promote innovation.
The growth of intellectual property is after all closely linked to
the renaissance movement in the West in the 16th and 17th century.
US patent law allows innovation in plant breeding. Its wishful to
wish away the US patent system. The US will not change its law as
much as we will retain our law on synergy or non-patenting of agriculture
regardless of Trade Related Intellectual Property Rights (TRIPS).
All you can fight is the extension of US law to other countries. TRIPS
itself has really broad essentials of patenting and allows member
countries to exclude many items from being patented.
The RiceTec patent has some biotech involved in it, it is not primitive
cross breeding. These new rice lines have nothing to do with basmati.
Cross breeding is a common practice in agriculture and one cannot
prevent anyone from doing it. Anyone anywhere in the world has the
right to cross breed basmati. The only question is should they get
intellectual property protection for it. On the face of it, they have
a case for the patent under US patent law, as the patent is for a
crossbreed. It is unlikely that they will get a patent in many other
countries because most countries do not allow patenting of plants
or agricultural practices.
If we want to protect basmati and other indigenous plant and herbal
varieties, we have to use the US patent system to oppose the patent.
US law says that prior publication anywhere in the world can be used
to revoke a patent. It looks like that India has not published enough
on basmati. Agricultural Research institutes in India probably do
have basmati cross-breeding programs but sufficient effort has not
been undertaken to dig up the material. In absence of such material,
the US patent office will grant the patent.
