International Intellectual Property Rights Conventions seek to grant plant variety breeders the right to enforce plant variety patents. Despite the fact that these conventions seek to protect intellectual property rights, they fail to provide a viable solution to conflicts that arise between local farmers and multinational corporations. Activists claim that the market for plant variety breeders is increasingly dominated by a few large corporations, both globally and in India. Developing countries, such as India, want to protect their farmers’ rights to use, sow, and sell the harvest, including seeds, of any plant variety they produce, including those protected by International intellectual property rights.
The Protection of Plant Variety and Farmers Right Act, 2001 (PPVFR Act) is was enacted by the Indian Parliament to protect various plant varieties, the rights of farmers and plant breeders, and to encourage the cultivation and development of new varieties of plants.
The PPV&FR Act, 2001 was enacted to grant intellectual property rights to farmers, researchers and plant breeders and who have developed any new or extant plant varieties. The Intellectual Property Right provided under the PPV & FR Act, 2001 is a dual right: one for the variety and the other for the denomination issued to it by the breeder.
The rights conferred by this Act are heritable and transferable, and only the registration of a plant variety confers these rights. Farmers have the right to save, use, re-sow, exchange, or sell their farm produce, including seed, in an unbranded manner. Farmers’ varieties are eligible for registration, and farmers are not required to pay any fees in any proceedings brought under this Act.
PepsiCo India received a patent under this Act in 2016 for its FL 2027 potato variety, which is used to create their popular Lay’s Potato Chips. The potato was introduced to India in 2009 and was cultivated by approximately 12,000 farmers with whom the company had an exclusive contract to sell seeds and buy back their harvest.
Section 66 of the PPVFR Act, 2001, provides for relief in infringement proceedings, including injunctions and, at the plaintiff’s option, either damages or a part of the profits.
PepsiCo filed infringement cases under the Act against nine farmers in Gujarat in 2019, alleging that farmers who were not part of its “collaborative farming programme” were also producing and selling this type, including a Rs. 4.2 crore claim against four small farmers.
In December 2021, Protection of Plant Variety & Farmers Rights Authority, a statutory body constituted by the Act, ruled that PepsiCo cannot claim a patent over a seed variety. The order pointed out inconsistencies in the documents provided by PepsiCo claiming ownership of the FL 2027 potato variety. The Protection of Plant Variety and Farmer’s Rights Authority then revoked PepsiCo’s registration.
PepsiCo’s decision to enforce its intellectual property rights by curtailing farmers’ rights was heavily criticised by the Indian public, as well as some IPR and agriculture experts abroad.
In 2022, PepsiCo India filed an appeal before the Delhi High Court against the December 2021 order passed by the PPVFRA, with a prayer to reinstate their registration of FL 2027.
This puts the Delhi High Court in a difficult position vis-à-vis enforcement of the intellectual property rights of the company and reinstating their registration and protecting the Indian farmers’ right to livelihood, which is a part of the fundamental right to life protected by the Constitution of India under Article 21. PepsiCo has requested the Delhi High Court to restore its registration for the benefit of the thousands of farmers who are authorised to grow the potato variety in contract with the company. So, the conflict essentially boils down to the rights of the contracting farmers, pitted against those who don’t have a contract with the company.
Some legal experts have come out in support of PepsiCo, arguing that development of new plant varieties takes years and significant financial investments and that just like other patents, these patented plant varieties should also be protected with equal diligence and without prejudice to the interests of the patent owners.
The next hearing in the appeal is scheduled for November 2nd, 2022, and it shall definitely be an interesting one.
The views are that of author’s own and not necessarily the views of IPTSE Academy. This blog is a platform for academic discussions and hence authors have been given flexibility to convey their thought process.
Student, Faculty of Law
University of Delhi