Context: Earlier, the Protection of Plant Varieties and Farmers Rights’ Authority (PPVFRA) revoked the company’s registration vis-a-vis the unique potato variety developed by it. Subsequently, PepsiCo filed an appeal against the order of PPVFRA in the Delhi High Court. However, on July 5, the Delhi High Court held that there was “no merit” in the appeal filed by PepsiCo over the patent rights for its ‘unique potato’ variety.
What is the PPV&FR Act?
- The Act provides an effective framework to conserve and encourage the development of various plant varieties. It established an effective system to safeguard and recognise the rights of breeders, researchers and farmers to promote agricultural development in the country.
- The Act introduced intellectual property protection in Indian agriculture and is the world’s only IPR legislation which grants intellectual property rights not only to the plant breeders but also to the farmers.
- Additionally, it also facilitates the mushrooming of the Indian seed industry to ensure the availability of high-quality seeds and planting materials to farmers.
- Eligibility criteria: A variety of seed is eligible for registration under the Act if it fulfils the criteria of Distinctiveness, Uniformity and Stability (DUS). The Act prescribes the registrable plant varieties that can be registered for protection, namely:
- New variety
- Extant variety
- Farmers’ variety
- Essentially derived variety
Institutional Mechanism under the Act
- Protection of Plant Varieties and Farmers’ Rights Authority (PPVFRA): To implement the provisions of the Act by the Department of Agriculture and Cooperation, Ministry of Agriculture. General Functions of the Authority include:
- Registration of new plant varieties.
- Developing DUS (Distinctiveness, Uniformity and Stability) test guidelines for new plant species.
- Facilitate development and commercialisation of new varieties through formal linkages with agricultural universities, research institutions and Krishi Vigyan Kendras.
- Recognizing and rewarding farmers, community of farmers, particularly tribal and rural communities engaged in conservation and improvement.
- Maintenance of National Gene Bank to store the seed material.
- Preservation of plant genetic resources of economic plants and their wild relatives.
- Plant Varieties Protection Appellate Tribunal (PVPAT): The decisions of the PVPAT can be challenged in the High Court. The Tribunal shall dispose of the appeal within one year.
About the Case
- PepsiCo had developed a potato plant variety, ‘FL 2027’.
- FL 2027 is a ‘chipping potato’ variety with low external defects, high dry matter/high solids content and stable sugars, all of which make it highly suitable for the manufacture of chips. Potatoes of this particular variety are used to make the popular Lays’ Potato Chips.
- A certificate of registration for FL 2027 was granted to PepsiCo India on February 1, 2016, conferring it an exclusionary right to market, sell, import, export or distribute FL 2027 for a period of six years.
- However, in an application filed by a farmers’ rights activist, the PPVFRA revoked the company’s registered potato variety on December 3, 2021. This is because PepsiCo had given the first date of sale of the variety in its application as December 17, 2009. However, the variety had already been commercialised in 2002 in Chile. This means that the certificate of registration which PepsiCo had obtained was based on incorrect information furnished by the applicant. Therefore, as per Section 34(a) (incorrect information furnished), the registration was revoked.
What are grounds for revocation?
According to Section 34 of the PPV&FR Act, the protection granted to a breeder may be revoked by the authority on the following grounds:
- Grant of a registration certificate is based on incorrect information furnished by the applicant
- Registration certificate was granted to an ineligible person.
- When the breeder does not provide the registrar with the required documents.
- Failure to provide an alternative denomination for variety registration in case the earlier. variety provided is not permissible for registration.
- Failure of the breeder to provide the required seeds for compulsory licence.
- Failure to comply with the acts, rules, regulations and directions issued by the Authority.
- Grant of the registration certificate is against public interest.
Why did the court reject the appeal?
- PepsiCo had sought the registration of FL 2027 variety as a “new variant” instead of an “extant variant” in its application dated February 16, 2012, despite furnishing the date of its commercialisation in India to be December 17, 2009.
- However, to be registered as a “new variant” an additional requirement of ‘novelty’ in addition to ‘distinctiveness’, ‘uniformity’ and ‘stability’ (DUS) must be satisfied. This requires the propagated or harvested material from it must not have been sold in India earlier than 1 year before the date of filing the application for registration.
- Hence, the court held that FL 2027 could not fulfil the criteria of novelty and was only eligible for registration under “extant variety”.
- India is an agri-based economy with the agriculture sector having the highest workforce, nearly 152 million as of FY2021. Hence, the multinational food processing companies and investors must prioritise the wellbeing of farmers and their rights by developing a comprehensive understanding of India’s local laws, particularly the PPV&FR Act 2001, and recognise the safeguards and protections it provides to farmers.