LEGAL ASPECTS OF BUSINESS

LEGAL ISSUES IN
INTELLECTUAL PROPERTY RIGHTS
IN TRADITIONAL KNOWLEDGE

Under the guidance of

Prof. C.L.Bansal

Submitted by:
Section-B, Group-9
Apurv Gupta - 15P069
Keshav Bajaj - 15P088
Kriti Chowdhary - 15P089
Rohit Jain - 15P103
Varun Mittal - 15P116
Vishal Kumar - 15P119

INDEX
PAGE NO.
1. Introduction

2. Intellectual Property rights

2.1 Patent

2.2 Trademark

2.3 Geographic Inclinations

2.4 Copyright

2.5 Plant Variety Protection

3. World Intellectual Property Rights

4. Traditional Knowledge

5. Case - India-US Basmati Dispute

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5.1 Patent on Name

5.2 Role of Government

1. Introduction
Intellectual property is a direct outcome of human-intellect. The motive
behind protecting the Intellectual property is to encourage creative
inventions and ideas. Intellectual property plays a role of sine quo non in the
economic and technological development of a nation. The prosperity
achieved by developed nations is the result of exploitation of their
intellectual property.
2. Intellectual Property Rights
TYPES OF IPR IN INDIA
2.1 PATENT:
Definition and significance :

A patent is granted for an invention which is a new product or

process, that meets conditions of novelty, non-obviousness and
industrial use. Inventive step is the feature(s) of the invention that
involves technical advance as compared to existing knowledge and
that makes the invention not obvious to a person skilled in the art.
Industrial use means that the invention is capable of being made or
used in an industry.

Ministry administering the IPR:

Department of Industrial Policy and Promotion,

Ministry of Commerce & Industry

Concerned IP Act :

The Patents Act, 1970 (as amended in 2005)

DESIGN:

A design refers only to the features of shape, configuration, pattern,

ornamentation, composition of color or line or a combination thereof,
applied to any article, whether two or three dimensional or in both
forms by any industrial process or means which, in the finished article,
appeal to and are judged solely by the eye.

Ministry administering the IPR :

Department of Industrial Policy and Promotion

Ministry of Commerce & Industry

Concerned IP Act :

Designs Act 2000

2.2 TRADE MARK:

Definition and significance :

A Trade Mark can be a device, brand, heading, label ticket name,

packaging, sign, word, letter, number, drawing, picture, emblem, color
or combination of colors, shape of goods, signature or a combination
thereof.

A trademark means a mark capable of being represented graphically

and which is capable of distinguishing the goods or services of one
undertaking from those of other undertakings, shall be capable of
constituting a trademark.

Ministry administering the IPR :

Department of Industrial Policy and Promotion

Ministry of Commerce & Industry

2.3 GEOGRAPHICAL INDICATIONS:

Definition and significance :

geographical

indication

identifies

agricultural

or

natural

or

manufactured goods as originating or manufactured in the territory of

a country or region or locality in that territory, where a given quality,
reputation or other characteristic of such goods is essentially
attributable to its geographical origin and in case where such goods
are manufactured goods one of the activities of either. The production
or of processing of preparation of the goods concerned takes place in
such territory, region, or locality as the case may be.
Ministry administering the IPR :

Department of Industrial Policy and Promotion

Ministry of Commerce & Industry

Concerned IP Act :

The Geographical Indications of Goods (Registration & Protection) Act,

1999

2.4 COPYRIGHT:
Definition and significance :

Copyright is a right given by the law to creators of literary, dramatic,

musical and artistic works and producers of cinematograph films and
sound recordings. In fact, it is a bundle of rights including, inter alia,
rights of reproduction, communication to the public, adaptation and
translation of the work.

Ministry administering the IPR :

Ministry of Human Resource Development The Copyright Act, 1957

Concerned IP Act :

The Copyright Act, 1957 (as amended)

2.5 PLANT VARIETY PROTECTION:

Definition and significance :

Protection granted for plant varieties, the rights of farmers and plant
breeders and to encourage the development of new varieties of plants.

Ministry administering the IPR :

Department of Agriculture and Cooperation

Ministry of Agriculture

Concerned IP Act :

The Protection of Plant Varieties and Farmers Rights (PPV&FR) Act,

2001

SEMICONDUCTOR INTEGRATED CIRCUITS LAYOUT-DESIGN:

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Definition and significance :

The aim of the Semiconductor Integrated Circuits Layout-Design Act

2000 is to provide protection of Intellectual Property Right (IPR) in the
area of Semiconductor

Integrated Circuit Layout Designs and for matters connected therewith

or incidental thereto.

Ministry administering the IPR :

Department of Electronics and Information Technology

Ministry of Communications and Information Technology

Concerned IP Act :

Semiconductor Integrated Circuits Layout-Design Act, 2000

3. WIPO - World Intellectual Property Organization

The current international system for protecting intellectual property was
fashioned during the age of industrialization in the West and developed
subsequently in line with the perceived needs of technologically advanced
societies. However, in recent years, indigenous peoples, local communities,
and

governments,

mainly

in

developing

countries,

have

demanded

equivalent protection for traditional knowledge systems.

In 2000, WIPO members established an Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore (IGC), and in 2009 they agreed to develop an international legal
instrument (or instruments) that would give traditional knowledge, genetic
resources and traditional cultural expressions (folklore) effective protection.

Such an instrument could range from a recommendation to WIPO members

to a formal treaty that would bind countries choosing to ratify it.
4. Traditional Knowledge
Traditional knowledge is not so-called because of its antiquity. It is a living
body of knowledge that is developed, sustained and passed on from
generation to generation within a community, often forming part of its
cultural or spiritual identity. As such, it is not easily protected by the current
intellectual property system, which typically grants protection for a limited
period to inventions and original works by named individuals or companies.
Its living nature also means that traditional knowledge is not easy to
define.
Recognizing traditional forms of creativity and innovation as protectable
intellectual property would be an historic shift in international law, enabling
indigenous and local communities as well as governments to have a say over
the use of their traditional knowledge by others. This would make it possible,
for example, to protect traditional remedies and indigenous art and music
against misappropriation, and enable communities to control and benefit
collectively from their commercial exploitation.
5. CASE : INDIA-US Basmati Rice Dispute
Case Facts

In September 1997, an American company RiceTec Inc, a small food

technology company based in Taxes, was granted a patent by the US
patent office to call the aromatic rice variety developed in USA 'Basmati'.
RiceTec Inc, had been trying to enter the international Basmati market
with brands like 'Kasmati' and 'Texmati' described as Basmati-type rice
with

minimal

success. Ultimately,

the company claimed

to have

developed a new strain of aromatic rice by interbreeding basmati with

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another variety. They sought to call the allegedly new variety as Texmati
or American Basmati.

RiceTec Inc, was issued the Patent number 5663484 on Basmati rice
lines and grains on September 2, 1997.

This was objected

to by

two

(NGOs) Centre

for Food

Indian nongovernmental organizations

Safety,

an

international

NGO

that

campaigns against biopiracy, and the Research Foundation for Science,

Technology and Ecology, an Indian environmental NGO who filed legal
petitions in the United States. The Centre for Scientific and Industrial
Research also objected to it.

India challenged arguing that Basmati is unique aromatic rice grown in

northern India and not a name Rice tec could claim and only inventions
can be patented. Consequently US patent office accepted Indias basic
position and the company had to drop 15 out of 20 claims that it had
made. And for remaining claims, Rice tec managed to evolve three new
varieties of rice for which it got patent from United states Patent and
Trademark office (USPTO).

Rice Tec was not handed over Basmati Brand but provided a patent for
superior three strains of Basmati developed by cross-breeding a Pakistani
Basmati with semi-dwarf American variety.

According to WTO agreement, geographic indication like Basmati can be

protected legally and their misuse can be prevented. And Indian
government was late in taking such actions.
5.1 Patent on Name

Basically patents are given for new innovations.

Before we go for answering we need to know what is Bio piracy.

8

Bio piracy is a situation where indigenous knowledge of nature,

originating with indigenous peoples, is used by others for profit,
without permission from and with little or no compensation or
recognition to the indigenous people themselves.

Inventions can only be patented if they satisfy three criteria:

Novelty: only inventions that are genuinely new, and not part of
existing knowledge, can be patented.

Non-obviousness: if the new invention is obvious, i.e. anyone familiar

with the subject could easily anticipate the invention, then it cannot be
patented.

Utility: the invention has to work in practice.

A. Name Basmati

Many critics of the basmati patent have argued that RiceTecs use of
the name "basmati" is wrong because only rice grown in northern India
and Pakistan can be termed basmati and no other person or country
can use the name Basmati and The Trade-Related Intellectual Property
(TRIPs) Agreement of the World Trade Organization provides for
protection where a given quality or reputation of an item is attributable
to its geographic origin.

Basmati rice, sought-after for its fragrant taste, was developed by

Indian farmers over hundreds of years, but the Texan company RiceTec
obtained a patent for a cross-breed with American long-grain rice.

RiceTec was granted the patent on the basis of aroma, elongation of

the grain on cooking and chalkiness.

Authentic Basmati rice can only be obtained from the northern regions
of India and Pakistan due to the unique and complex combination of
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environment, soil, climate, agricultural practices and the genetics of

the Basmati varieties. But in 1998 the US Rice Federation submitted
that the term Basmati is generic and refers to a type of aromatic rice.
In response, to a petition filed by the US and Indian civil society
organizations which sought to prevent US-grown rice from being
advertised with the word Basmati, the US Department of Agriculture
and the US Federal Trade Commission rejected it in May 2001. It opined
that the label American-grown Basmati did not mislead the
consumers, and deemed Basmati as a generic term.

So we can conclude that Basmati Name cannot be patented

because it is a name given to long rice having good fragrance
grown in northern part of India and Pakistan for thousands of
years and according WTOs agreement regarding geographic
indication which can be protected against misuse hence
Basmati Name is not patentable.

5.2 Role Of Government

In an official release, the government of India reacted immediately

after learning of the Basmati patent issued to RiceTec Inc., stating that
it would approach the US patent office and urge them to re-examine
the patent to a United States firm to grow and sell rice under the
Basmati brand name in order to protect India's interests, particularly
those of growers and exporters.

Furthermore, a

high

level inter-ministerial group

comprising

of

representatives of the ministries and departments of commerce,

industry, external affairs, Council for scientific and industrial research
(CSIR), Agriculture, Bio-technology, All India Rice Exporters Association
(AIREA),

APEDA,

and

Indian

Council

of

Agricultural

Research

(ICAR) were mobilized to begin an in-depth examination of the case.

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The contents and implications of the patent are currently being

analyzed in consultation with patent attorneys and agricultural
scientists. The government of India is particularly concerned about the
patenting of Basmati because of an earlier case where the US granted
a patent to two Indian-born scientists on the use of Turmeric as a
wound healing agent. This case worked in favor of India because the
patent was subsequently revoked after scientists of (CSIR) successfully
challenged the patenting on the ground that the healing properties of
Turmeric had been 'common knowledge' in India for centuries. There is
a clause in US patent laws that will accept any information already
available in published or written form anywhere in the world as
'common knowledge'. As a result, India was able to furnish published
evidence to support their case that the healing characteristics of
Turmeric is not a new invention and as such cannot be patented.

According to the Economic Times of India, the law firm of Sagar and
Suri who won the Turmeric patent case and presently representing the
government against RiceTec Inc. in existing cases, said; "RiceTec has
got a patent for three things: growing rice plants with certain
characteristics identical to Basmati, the grain produced by such plants,
and the method of selecting the rice plant based on a starch index (SI)
test devised by RiceTec Inc." The lawyers plan to challenge this patent
on the basis that the above mentioned plant varieties and grains
already exist and thus cannot be patented. In addition, they
encountered some information from the US National Agricultural
Statistics Service in its latest Rice Year book 1997, released in January
1998, which states that almost 75 percent of US rice imports are the
Jasmine rice from Thailand and most of the remainder are from India
and Pakistan, varieties that cannot be grown in the US" This piece of
information is rather interesting and can be used as a weapon against
the RiceTec Basmati patent.
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In June 2000 Agriculture and Processed Food Products Development

Authority (APEDA) Under the Ministry Of Commerce filed a reexamination application contesting 3 claims of the patent. So.
Company withdrew its claims on 4 points that relate to trade of
Basmati. INDIA WON THE CASE BASED ON EOGRAPHICAL INDICATIONS
DURING JUNE 2000!

For years, India largely ignored any claim or legal protection for
growers and marketers of basmati. A bill has been introduced to
recognize produce as belonging to a specific geographical area, but it
is still pending before a panel of the Parliament. Given that basmati is
not patented by geographic location even within India, the country's
international patent appeal appears weak.

For over two decades ''basmati'' has been used in the United States to
describe long-grain aromatic rice grown domestically. This usage went
unchallenged by India, so much so that the patent claims were under
the plea of ''long usage'' provided for in trade-related intellectual
property rights.

Ricetec claims that India felt posed a threat to Indian basmati exports
to the United States. In hundreds of pages of scientific evidence, India
argued that its basmati varieties already had the characteristics
claimed as unique by Ricetec.

And India won the case and Ricetec has to withdraw his 15 claims out
of 20 but it is always questionable that whose basmati it is?

So we can evaluate government role as fair enough for protecting the

name basmati because government immediately reacted against it,
made a committee and took help from those who have already
experienced same in case of turmeric and they also prevented patent
of basmati through APEDA under ministry of commerce through re12

examination and finally won the case based on EOGRAPHICAL

INDICATIONS during JUNE 2000.

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