India has revoked a patent for a potato variety grown exclusively for PepsiCo Inc’s popular Lay’s potato chips, according to an order issued on Friday by the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Authority.
In 2019, PepsiCo sued some Indian farmers based in the western state of Gujarat for cultivating the FC5 potato variety, which has a lower moisture content required to make snacks such as potato chips.
Withdrawing the lawsuits the same year, the New York-based company said it wanted to settle the issue amicably.
Later, Kavitha Kuruganti, a farmers’ rights activist, petitioned the PPVFR Authority for revocation of intellectual protection granted to PepsiCo’s FC5 potato variety, saying that India’s rules do not allow a patent on seed varieties.
The PPVFR Authority agreed with Kuruganti’s contention that Pepsi cannot claim a patent over a seed variety.
“The certificate of registration…is hereby revoked with immediate effect,” K. V. Prabhu, chairman of the PPVFR Authority said.
“This is a precedent setting judgement by the PPVFR Authority, meaning that anything that threatens farmers’ rights as contained in India’s unique legislation is and ought to be a matter of public interest. This is a victory for the farmers of India,” said Kavitha, the activist who fought the case against the multinational.
The PPV&FR revoked the PVP certificate granted to PepsiCo India Holding (PIH) on a potato variety in India (FL-2027) on multiple grounds, including that the grant of the certificate of registration had been based on incorrect information furnished by the applicant (Sec 34(a)), that the certificate had been granted to a person not eligible for protection (Sec 34(b)), that the breeder did not provide the Registrar with such information, documents or material as required for registration (Sec 34(c)) and that the grant of the certificate of registration was not in the public interest (Sec 34(h).
“Friday’s judgement means that Pepsico’s varietal IPR as granted in a plant variety certificate in February 2016 will be taken back by the Authority. The judgement also brought to light the procedural gaps in the grant of PVCs. Importantly, farmers’ rights as contained in India’s Act and any attempt to harass and intimidate farmers have been considered as a matter of public interest through this judgement,” added Kuruganti.
Reacting to the development, a Pepsico India spokesperson said: “We are aware of the order passed by the PPVFR Authority and are in the process of reviewing the same. Hence, at this moment it would be premature to offer any detailed comments.”
The farmers argued that the IPR granted to Pepsico India on a potato variety was not as per the provisions laid down for registration and was also against public interest. The Revocation Application was filed on June 11, 2019, and the PPV&FR took almost 30 months in arriving at this conclusion on
“This judgement sets a precedent for all seed and F&B corporations and other registrants to not only uphold, but also more importantly, not to transgress the legally granted farmers’ seed rights and freedoms in India. This judgement of the authority is significant and historic. It upholds farmers’ seed freedoms, which makes this sui generics law of India truly unique. The PPV&FR’s acceptance of the revocation application, including on grounds of being against public interest, sends an important signal that farmers’ rights cannot be taken lightly by IPR-holders in the country,” explained Shalini Bhutani, legal researcher and IPR expert in agriculture and biodiversity.
“This should prevent further intimidation of farmers through vexatious IP lawsuits. This is a fundamental safeguard for farmers to inherent seed rights. Sec 34 for Revocation of the IP protection has been reinforced by our lawmakers in their wisdom keeping in mind that developments warranting intervention could happen after the grant of certificate of registration, requiring the said IP Registration to be revoked”, added Bhutani.
In the current case, Pepsico India used the certificate that it got from the Authority on FL-2027 potato variety to sue hapless and uninformed farmers in Gujarat in 2018 and 2019, basing its actions on a non-existent exclusive right that it claims to have obtained against Indian farmers also.
The judgement of the PPV&FR also says this. On the other hand, the Indian legislation is unambiguous that farmers have over-arching rights over what seed they can plant as well as what they are entitled to do with their produce from any variety, including seed of registered variety. The only condition is that they may not sell seeds of protected varieties in a branded fashion, knowingly. Even here, an Indian farmer can claim innocent infringement if done unknowingly.
“Despite the law being this clear, Pepsico India Holding harassed and intimidated farmers and sued them for exorbitant levels of alleged damages in 2018 and 2019. PIH also engaged detectives to entrap farmers and took secret video footage to build its cases. It is a welcome development that with this judgement, the PPV&FR has chosen to uphold the legal rights granted to farmers and has decisively considered Pepsi’s actions against potato farmers in Gujarat as a violation of public interest. The Friday order follows another responsible action that the PPV&FR took several months ago, when it corrected the factual mistakes we pointed out in the FAQs document on their website”, said Dr Suman Sahai, Gene Campaign.
“We are happy with the result of this case filed with the PPV&FR and feel proud to be instrumental in setting up the precedent that asserts farmers’ rights. We are thankful to the farm activists also”, said Bipinbhai Patel, one of the farmers sued by PIH in 2019.
“We believe that the PPV&FR and the government has a responsibility to let every applicant and registrant under the PPV&FR Act know that their rights do not supersede farmers’ rights. The registrants’ rights are limited to only production of a variety, and not production from a variety. Even when it comes to production of a variety, farmers have rights to produce seed and even sell seed of a protected variety provided it is unbranded”, said Kapil Shah of Kisan Beej Adhikar Manch.
With this judgement, the company now has just about two months of the original registration time period left which was till January 31, 2022, as the registration certificate given to Pepsico was renewable up to 31st January 2031, which now stands revoked.