Pepsico's potato patent revoked by Indian authority

Gandhinagar: Accepting a farm activist's application to revoke the varietal registration of Pepsico India Holding on potato variety FL-2027, The Protection of Plant Varieties & Farmers' Rights (PPVFR) Authority on Friday revoked the registration the multinational company had. Even at the global level, this is the first time that the multinational had to face such a defeat.

"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 Kuruganti, 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 Kuruganti's application.

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.

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