Brief facts of the Case

PepsiCo India has filed a suit against nine potato farmers of Gujarat, India, for growing the FL 2027 plant variety branded, namely FC5 Potato, without the license. PepsiCo alleges that the farmers had infringed their Intellectual Property Rights and claimed one core from each Farmer under the Protection of Plant Varieties and Farmer’s Rights Act 2001. This event led to farmers’ protests, making PepsiCo withdraw the lawsuit against the farmers.

PepsiCo said the “farmers could join the group of groups who exclusively FC5 Potato variety or must stop producing the type in its outside court settlement.” PepsiCo wants farmers to commit that they will not use the patented variety of potatoes in future. Later, Kavitha Kuruganti, a farmers rights activist, petitioned the Plant Protection Variety and Farmer’s Rights Authority to revoke Intellectual Protection granted to PepsiCo FC5 Potato variety, saying that Indian laws do not allow a patent on seeds varieties.

Grounds For Revocation

Under Section 34 of Protection of Plant Variety and Farmer’s Act 2001. Broadly relating Section 34(a),(b),(c),(f),(h) of PPV&FR Act 2001.

  • (a)that the grant of the certificate of registration has been based on incorrect information furnished by the applicant;
  • (b)that the certificate of registration has been granted to a person who is not eligible for Protection under this Act;
  • (c)that the Breeder did not provide the Registrar with such information, documents or material as required for registration under this Act;
  • (f) that the Breeder has not complied with the provisions of this Act or rules or regulations made thereunder;
  • (h) that the grant of the certificate of registration is not in the public interest:

Provided that no such protection shall be revoked unless the Breeder is given a reasonable opportunity to file an objection and of being heard in the matter

Description of Grounds for Revocation

Incorrect information furnished in the application for registration of the variety FL2027 filled by the registered Breeder in SL No.5 of the application in the column relating to the “Type of Variety” has claimed it as a new variety instead of applying as Extant variety.

Certificate of registration has been granted to a person who is not eligible for protection under the Act, and the Breeder did not provide the Registrar. As per Section 2 (c) of the PPV&FR Act, 2001, Breeder is something that the registered Breeder does not fit. The registered Breeder of the potato variety FL2027 has to fit into the definition of a plant breeder under the PPV&FR Act, which means that he should have evolved or developed the said variety. PepsiCo company (Registered Breeder) has attached a copy of the deed of assignment dated 26th September 2003 executed by Dr Robert W. Hopes in favour of Recot Inc. The United States of America herein, the denomination “2027“, is pen written as an afterthought and not an integral part of the assignment. The assignment is in the name of Recot Inc. USA, with its successors, legal representatives and assignees, which do not mention registered Breeder anywhere.

Grant of certificate of registration not in the public interest. The registered Breeder operates its contract farming operations that involve rejections of produce; such planting material would be available with farmers who would produce genetically accurate type plant of variety FL 2027. However, despite having access to the best legal support, an unambiguous interpretation of section 39 (1)(5) regarding farmers’ right to tackle competition from local potato chip makers, the registered Breeder chooses to sue nine farmers. Registered breeders created panic among farmers threatening their livelihood security and harassing them, dragging them to courts filling cases of infringement against them.

Judgement

Based on the grounds described above, the conditions for revocation laid down in provision to Section 34 for revocation of certificate of registration of FL2027 has also been satisfied. So, accordingly, the certificate of registration granted by the Registrar in favour of the registered Breeder in respect of the potato variety, namely FL2027, is revoked with immediate effect.

Conclusion: Indian laws do not authorise patents on plants, animals in whole or any part thereof other than microorganisms. Intellectual Property Rights on living organisms such as plants, seeds, genetic material can be owned? The very concept of ownership of life forms is contrary to many people moral views. Although Intellectual Property Rights act as incentives for research and development for suitable technologies are needed in the case of seeds, external stimuli are unnecessary.

Disclaimer: The present article intends to provide general guidance on the subject, and you can also consult us in your specific case.

Author

  • Title

    Naimisha Subramanyam is an Intellectual Property Attorney. Her interest in research in Trademarks, Copyright, Geographical Indication, Trade secrets. She has gained experience with Senior counsel at District courts. Naimisha Subramanyam graduated B.B.A LL.B (HONS) in IPR from Alliance University Bangalore. She wants to pursue her career in the field of IPR by becoming IP Practitioner.