A product like basmati rice, it is acknowledged, has quite distinctive features in terms of long-grain characteristics, aroma and cooking properties such as elongation and relative non-stickiness. The range of basmati varieties available in the market do suggest that much has gone into generating the characteristics associated with the best basmati. Despite the claim that the original species came from Mesopotamia, the contribution made by farmers in India and Pakistan, where basmati is predominantly grown, in mastering and improving features that make basmati distinctive is both substantial and obvious. This should, in theory, entitle these farmers to one of two benefits. Either a share of the royalty on any derived variety of the kind that is being put out by RiceTec, assuming it is commercially successful, or protection of the description basmati on grounds of geographical indication, as happens with Champagne, copies of which have to be termed "sparkling wine" if produced outside specified areas. Neither of these entitlements is available to the South Asian farming community. In fact, in May 2000, the US Federal Trade Commission rejected a petition by three NGOs demanding protection in US markets for the "basmati" title on geographical grounds for rice grown in certain specified regions of the world. Yet RiceTec that develops on the substantial traditional knowledge embodied in existing varieties is provided protection of any profits to be made on derived varieties on grounds of "novelty".
 
Needless to say, "novelty" here is a matter of fickle judgement, resulting in the peculiar situation where both RiceTec and the USPTO have kept altering their positions. In its initial order dating back to 1997 the USPTO provided RiceTec a patent that identified the varieties concerned as part of the basmati line and accepted 20 claims made by RiceTec regarding these varieties. When three of these claims were challenged by India, RiceTec itself decided to withdraw four of its claims, to protect its case that it had indeed developed novel varieties of basmati. Subsequently, the USPTO goes on to reject all but 5 of the remaining claims and chooses to describe the RiceTec's rice lines not as "basmati rice lines" but as "novel rice lines" that are "similar or superior to" basmati. This, of course allows grain from RiceTec varieties to be called basmati rice, and that too of superior quality.
 
Anyone with a rudimentary understanding of economics, markets and business practices should realise that RiceTec's intention never was to obtain protection of a kind that would make its new lines the only basmati. Making basmati a protected brand name for itself was an impossibility. Even when the original patent was in operation, exports of basmati rice from India were not kept out on grounds of patent violation. Rather, RiceTec's intention was to ensure that derived, basmati look-alike varieties that can be cultivated in climates dissimilar to that in the basmati-growing regions of India and Pakistan, are provided an official basmati label. Patenting was more a marketing device rather than a protectionist one. In this effort, RiceTec has lost a little, inasmuch as its lines are no more officially named basmati rice lines, but it has gained a lot inasmuch as the USPTO sees in the novel rice lines varieties that are similar to or superior to "good quality" basmati which it believes "can be cooked to the firmness of traditional basmati rice preparations". RiceTec has virtually got itself a geographical indicator as a trademark, through the unusual exertions of the USPTO. Whatever the brand name used, these varieties can be marketed as superior basmati.
 
This important gain for RiceTec comes from two kinds of investments: "agricultural investments" in developing modified varieties that can be grown in climatic zones different from that of the source product; and investments in product differentiation that are needed for an official declaration about its rice lines that carries the term basmati. The first of these are investments of a kind that over time farmers all over the world have made, without any promise of promotional or protectionist support. The second consists of investments in minor modifications to justify novelty. Consider for example the way in which the three lines are seen as novel. There are references to the method of breeding, to the semi-dwarf stature of the plants (that help it withstand stronger winds), and to their substantial photoperiod insensitivity, that allows cultivation in a region with shorter days. Modifying properties in this manner is now common practice among breeders seeking to develop hybrids of different kinds.
 
There is no guarantee that by getting itself a trademark-like patent notification, RiceTec is likely to market its varieties and make them successful competitors to basmati exported from South Asia. But the battle has begun, and a first partial victory won on the basis of a questionable use of the patenting mechanism. Unfortunately, the official Indian position on the re-examination exercise has concentrated on the government's success in spending much time, money and effort on blocking the patenting of basmati itself and of diluting the nature of the patent granted to RiceTec's rice lines. The fact that it has won this particular, limited legal battle on the patent front should not detract from the fact that agribusiness firms and farmers with much deeper pockets that Asian ones and with support from much stronger governments have got more than a foot into the basmati market.