Patently absurd: It is now the turn of ATTA
Posted: Saturday, December 7, 2002
By Devinder Sharma
At a time when the World Trade Organization (WTO) is forcing developing countries to implement the trade-related intellectual property rights regime, the United States patent on "a method for producing atta flour -- typically used to produce Asian breads such as chapatti and roti " -- exposes the absurdity of the entire patenting regime.
A broad-based US patent (# 6,098,905, dated Aug 8, 2000) was granted to a Nebraska-based private company, ConAgra Inc. Interestingly, the so-called inventers - Ali Salem, Sarath K. Katta and Sambasiva R. Chigurupati - have Asian ancestry. Their 'invention', if at all it can be called an invention, relates to a method for producing wheat flour or atta. The novel method that they have created for making wheat flour and subsequently patented 'covers changes, variations, modifications, and other uses and applications which do not depart from the spirit and scope of the invention'.
And what have they invented - a method to produce atta that includes "passing an amount of wheat through a device designed to crack the wheat so as to produce an amount of cracked wheat, followed by passing the cracked wheat through at least two smooth rolls designed to grind the cracked wheat into flour, with the smooth roll importantly grinding the wheat to a smaller particle size and shearing the wheat to cause starch damage in the finished atta flour." Isn't that a great 'invention' that merits a US patent? Isn't this similar to the manufacturing process being used by thousands of roller flourmills (many of them modernized) that exists throughout South Asia?
Since the 'inventors' have drawn a patent that covers the 'spirit and scope' of the invention, any modification and variation to this 'invention' too is patented. In other words, ConAgra has in one broad sweep ensured that the wheat flourmills throughout Asia (and in several other parts of the world) come under its monopoly control over the technology they have been using. With many big and even multinational food companies (including giants like Cargill) moving into the atta segment, ConAgra can literally make hay while we continue to consume chapattis and rotis. The patent application accepts that the requirement for wheat flour in countries like India, Pakistan, Bangladesh and Indonesia will grow in the years to come, and so therefore the company sees a huge market.
The patent application uses all the scientific jargons that are normally used in establishing novelty and its industrial application. Preliminary tests were conducted at the Kansas State University (US) and subsequent tests were carried out by the United Milling Systems of Denmark and of course at the ConAgra Milling Research facility in Omaha, Nebraska. One wonders why the company didn't think it proper to conduct these trials in India and by involving the best judge of the atta technology - the housewives. Their preference for a particular brand of atta is based on the kind and quality of chapattis that it makes. Fundamentally, a housewife will tell you that the best atta is the one, which is not 'hot' when it comes out from the flourmill.
In India, a majority of the big atta mills use the roller processing. Some like Golden Seal, Annapurna and Captain Cook use the stone milling technology. Interestingly, the starch damage percentage in the stone milling technology is much higher than the roller mills - 15 per cent against 5 to 9 per cent in rolling mills. This makes it suitable for the dough making, and at the same time the protein percentage hovers between 10-11 percent, almost equal or higher than the roller mills. Many of the roller mills in India use three rollers to crack wheat grains and grind the atta and therefore find nothing novel in the patent.
This is not the first time that the US or for that matter many other developed countries have granted patents that makes a mockery of the entire IPR regime. And that too at times when the patent system claims to look into three specific criteria - novelty, utility and its non-obviousness - before granting a monopoly control over a technological invention or method. Multinational Nestle has already been granted a European patent on vegetable pulao and parboiled rice. When asked what was novel about the patent, all that the multinational replied was that it has developed a 'unique' method of cooking vegetable pulao. In a country where hundreds of different recipes for making vegetable pulao already exists, one wonders what is the 'uniqueness' that Nestle claims to have developed. Patent examiners should have thrown out such a process patent application at first sight.
More recently, George Williamson Ltd., of England had filed for a patent on the entire manufacturing process of tea, from the plucking of leaves to its final packaging in chests, prompting the Tea Board of India to launch an offensive to counter the monopoly control over a process that has been in vogue throughout the country. So much so that a drug multinational, Burrough Welcome, has drawn a patent on the commonly used Oral Rehydration Therapy (ORT) by health workers. Irrespective of the fact that the therapy has been in vogue for ages in the developing countries but was first reported in an academic research paper in Bangladesh in 1971-72, and since then even the UNDP gives recognition to the Bangladesh researchers for the 'invention'. With a minor tinkering, the drug multinational subsequently got the patent.
Many IPR experts believe that one way to counter such unfair patents is to document the traditional knowledge that already exists and to make that available to the patent offices throughout the globe. What is not being understood is that it is perfectly right to 'educate' the patent lawyers who want to learn of the 'prior art' that exists elsewhere but what about those who refuse to see beyond a patent application. After all, it is difficult to imagine that the patent examiners in the US Patent & Trade Mark Office had never known what wheat flour is and so wasn't even aware of the process of producing it. There is something called 'common sense', and that cannot be built by producing digital libraries on traditional knowledge and commonly used production processes.
(Devinder Sharma is a New Delhi-based food and trade policy analyst)