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Indian authorities revoke Pepsico’s potato-patent

Pepsico India Holding accepted a request from a farmer activist to revoke its varietal registration on potato variety FL-2027. The Protection of Plant Variety & Farmers’ Right (PPVFR Authority) Authority on Friday revoked that multinational company’s registration. This is the first time the multinational has been unable to win at global level.

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FILE PHOTO: A customer picks packets of Lay’s potato chips at a shop in Ahmedabad, India, April 26, 2019. REUTERS/Amit Dave

“This is a precedent-setting judgment by the PPVFR Authority. It means that any threat to farmers’ rights, as contained in India’s unique legislation, is and should be a matter for public interest. “This is a victory to the farmers of India,” stated Kavitha Kuruganti who was an activist who fought against the multinational.

The PPV&FR revoked a PVP certificate that PepsiCo India Holding granted (PIH) for a potato variety in India (FL-2027). This was due to multiple reasons, including that the application contained incorrect information (Sec34(a),) that the certificate had been granted a person who is not eligible for protection (Sec34(b),) that the breeder failed to provide information, documents, or material required for registration (Sec34(c), and that it was not in the public interest) (Sec34(h).

“Friday’s judgment means that Pepsico will have to return its varietal IPR, as it was granted in a plant varieties certificate in February 2016, to the Authority. This judgement also highlighted the procedural flaws in the grant PVCs. Kuruganti stated that the judgement considered important issues such as farmers’ rights in India’s Act, and any attempts to harass or intimidate farmers.

Pepsico India spoke out to react to the developments, saying: “We are aware that the order was passed by the PPVFR Authority. We are currently reviewing it.” It would therefore be premature to make any specific comments at this time. Pepsico India was granted IPR on a potato variety by the farmers. This was in violation of the registration provisions and also was against the public interest. Kuruganti’s Revocation Application was filed June 11, 2019. The PPV&FR took nearly 30 months to reach this conclusion.

“This judgment sets a precedent that all seed and F&B corporations, and other registrants, must not only uphold but also not transgress India’s legally granted farmers’ seeds rights and freedoms, This historic and significant judgment of the authority is important. This sui generics law in India is unique because it upholds the rights of farmers to their seed freedoms. Shalini Bhutani (legal researcher, IPR expert in agriculture, and biodiversity) stated that the acceptance by PPV&FR of the revocation request, even on grounds of being against the public interest, is a clear signal that farmers’ rights are not to be taken lightly.”

“This should stop farmers being intimidated by vexatious IP lawsuits. This is a crucial safeguard for farmers’ rights to their inherent seed rights. Our lawmakers have strengthened Sec 34 for the revocation of IP protection, keeping in mind that developments may warrant intervention after the grant certificate of registration has been granted.

Pepsico India sued the uninformed and hapless farmers of Gujarat in 2018 and 2019. It used the certificate it received from the Authority for FL-2027 potato varieties to sue them.

This is also the stance of the PPV&FR. The Indian legislation, however, is clear that farmers have both broad rights to plant any variety of seed and what they can do with it. Only one condition applies: they cannot sell protected varieties of seeds in a branded manner, knowingly. Unknowingly, an Indian farmer may claim innocence of infringement.

Pepsico India Holding intimidated and harassed farmers, and then sued them for exorbitant amounts of damages in 2018 as well as 2019. PIH hired detectives to entrap farmers, and also took secret video footage for its cases. This judgement by the PPV&FR is a positive development. It has ruled that Pepsi’s actions in Gujarat against potato farmers was a violation the public interest. “The Friday order comes after a responsible action taken by the PPV&FR several months ago when it corrected factual errors we pointed out in their FAQs document,” said Dr Suman Sahai of Gene Campaign.

“We are pleased with the outcome of the case filed with PPV&FR, and we feel proud to have helped establish the precedent that protects farmers’ rights. Bipinbhai Ptel, one among the farmers sued by PIH in 2019, said that they are also grateful to farm activists.

“We believe the PPV&FR, the government have a responsibility to let all applicants and registrants under the PPV&FR Act understand that their rights don’t supersede the rights of farmers. The rights of the registrants are limited to production of a particular variety and not from that variety. Farmers have the right to produce and sell seed from protected varieties even if they are not branded,” said Kapil Shah, Kisan Beej Madhikar Manch.

This judgment means that the company has now only two months left of its original registration period, which was until January 31, 2022. The registration certificate issued to Pepsico could be renewed up to 31 January 2031. However, it is now revoked.

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