Farmers across India rejoiced the revocation of the protection granted to the multinational giant PepsiCo, over a potato variety grown exclusively for its Lay’s Potato Chips. This decision is a welcome move for an essentially agrarian Indian economy since it asserts the supremacy of the farmers’ rights in society over private rights.
Protecting plant varieties
Plant variety protection is a form of an intellectual property right that is granted to the breeders of new plant varieties. The global recognition of intellectual property rights for breeders of plant varieties has been achieved by the efforts of the International Union for the Protection of Plant Varieties “UPOV”, which is an intergovernmental organisation established by the International Convention for the Protection of new plant varieties (UPOV Convention), adopted in Paris in 1961[1]. To promote an effective system for plant variety protection and to encourage the development of new varieties of plants, UPOV provides a sui generis form of Intellectual Property protection for plant varieties.
Subsequently, the need to grant protection to plant varieties was recognised by the TRIPS agreement which is the grundnorm for the present Intellectual Property regimes across the globe. TRIPS mandates that member countries grant protection to plant varieties. It gives them the liberty to choose whether to protect the same via the patent regime, sui generis system or by a combination of both.
Being a signatory to the TRIPS agreement, India in the year 2000 introduced a sui-generis system for plant variety protection under the Protection of Plant Varieties and Farmer Rights Act, 2001. (The Act)
While abiding by the mandate to grant Intellectual Property protection to the breeders of Plant varieties, the Act is heavily bent towards protecting the rights of farmers in respect of their contribution towards conserving, improving and making available plant genetic resources for the development of new plant varieties. Farmers have been accorded special exemptions and protections under the act.
To accelerate the agricultural development in the country, a limited monopoly has been provided to breeders of those plant varieties which qualify to be ‘novel’ , ‘distinct’, ‘uniform’ and ‘stable’, in as much as the registration of a variety confers on the breeder an exclusive right to produce, sell, market, distribute, import or export that variety.
PepsiCo’s rights over FC5 Potatoes
In 2008, PepsiCo’s sale of Lay’s chips in India were hit due to an extensive shortage of process grade potatoes, owing to a crop failure on account of draughts, frost and late blight in potatoes. Thereafter, to ensure a constant supply of potatoes, the giant decided to introduce new potato seed varieties to decrease the chances of crop loss. The FC5 variety was introduced in India in 2009 and subsequently PepsiCo, applied for the registration of the same in 2011, which was granted to itin the year 2016. The FC5 variety has 5% lower moisture content than other varieties[2], making it more suitable for manufacturing potato chips. PepsiCo has been granting license to farmers to cultivate this variety with an arrangement to buy back their entire reproduce at a pre-determined fixed price.
In April 2019, PepsiCo sued a few farmers in Gujarat, accusing them of cultivating the FC5 potato variety without license, over which they held exclusive rights, accusing them of Intellectual Property infringement. The suit was soon withdrawn after discussions with the government. However, the farmers were under a constant threat of law suits and damages.
To aid the farmers, Kavitha Kuruganti a farm activist and the convenor of the Alliance for Sustainable and Holistic Agriculture, filed an application before the Protection of Plant Varieties and Farmers’ Right Authority (“Authority”) to revoke the registration for FC5 granted to PepsiCo. Her application was allowed and the protection was revoked on ground that at the time of registration, PepsiCo had not filed a valid assignment deed in its favour of the FC5 variety which was originally cultivated by Dr Robert W. Hoopes[3] , and thus the registration was obtained by producing incomplete documentation. The authority while revoking the protection also noted the hardship being caused to the farmers who were sued and inspite of the suit being withdrawn were under a constant threat of law suits from PepsiCo.
Analysis
The authority’s decision is a welcome move in light of the larger public interest of granting adequate protection to farmers, to ensure that they are not exploited for private gains.
Under the Act, farmers have been given special rights called the ‘farmers rights’ which supersede the breeder’s rights. These are as follows:
- A farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under the act in the same manner as he was entitled to before the coming of this Act[4].
- A right established under this Act shall not be deemed to be infringed by a farmer who at the time of such infringement was not aware of the existence of such right[5]. No relief will be granted by any court against a farmer who proves that at the time of infringement, he was not aware of the right infringed.
These provisions make it amply clear that PepsiCo’s suit against the farmers was unwarranted and violative of the ‘farmer’s rights, and the revocation of the protection has come as a big sigh of relief for the farmers.
[1] https://www.wipo.int/edocs/mdocs/sme/en/wipo_ip_bis_ge_03/wipo_ip_bis_ge_03_11-main1.pdf
[2] https://www.wipo.int/edocs/mdocs/sme/en/wipo_ip_bis_ge_03/wipo_ip_bis_ge_03_11-main1.pdf
[3] https://theprint.in/theprint-essential/case-against-farmers-poor-documentation-why-pepsico-india-lost-lays-variety-potato-rights/776644/
[4] Section 39(1)(iv) , The Protection of Plant Varieties and Farmers Rights Act, 2001
[5] Section 42, The Protection of Plant Varieties and Farmers Rights Act, 2001
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