Pepsi’s appeal against revocation of its IPR on potato variety dismissed by Delhi HC

The Delhi High Court dismissed the appeal filed by PepsiCo India Holdings (PIH), against a revocation order on its Plant Varietal Protection (PVP) certificate in December 2021 on its IPR on a potato variety. The revocation order was earlier passed by the Protection of Plant Varieties & Farmers’ Rights Authority in December 2021 on an application filed by farmers’ rights activist Kavitha Kuruganti.

The cause for action for Kavitha Kuruganti’s revocation application arose from the fact that Pepsico India Holdings had filed vexatious suits against several potato farmers in Gujarat in 2018 and 2019 in the name of IPR infringement. In May 2019, however, it was forced to withdraw all those cases unconditionally in the face of intense public resistance.

Justice Navin Chawla concluded that he “found no merit in the present appeal” and dismissed it on July 5 2023. This is probably the first time that a revocation-related litigation was being adjudicated in India’s courts under the Protection for Plant Varieties and Farmers’ Rights (PPV&FR) Act 2001. The Act is a very unique sui generis legislation in India, unparallelled anywhere in the world. India’s lawmakers created this one-of-a-kind legislation in India, to comply with the WTO TRIPS Agreement. It is an Act which through Section 39(1)(iv) incorporated seed freedoms for farmers in terms of their entitlement to save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under this Act in an unbranded manner.

The Farmers’ Rights in this Act are in line with international treaties that recognise farmers’ rights, such as the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), the Convention on Biological Diversity (CBD) and the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP). The appeal by PIH in the Delhi High Court brought forth many legal questions for adjudication, specific to PepsiCo India’s applications for PVP registration in 2011 and 2012; its actions against several Gujarat potato farmers in 2018 and 2019 and public interest in relation to that; as well as in relation to interpretation about certain provisions of India’s Protection of Plant Varieties and Farmers’ Rights Act 2001.

“It is good that the judgement of Justice Chawla upheld the revocation order on at least three grounds (incorrect information with regard to date of first sale), ineligible registrant and failure to provide necessary documents, which are Sections 34(a), 34(b) and 34(c) of the Act). The judgement notes that the appellant/PIH is now suffering for its own mistakes and for its casual manner of making an application seeking registration. We welcome the fact that the judgement also states that 'any person interested' in applying for a revocation of a certificate granted would include within its ambit and scope a “public spirited person” who files for revocation of the registration in public interest.”

“It is however unfortunate that public interest violation, when it comes to vexatious suing of farmers in Gujarat, has not been upheld by Justice Chawla. Harassment of farmers was noted to be germane to the issue on hand by the Authority in its December 3, 2021, order. On the other hand, Justice Chawla, in his judgement opines that Section 34(h) grounds have not been clearly made out for revocation. Section 34(h) is about revocation on the grounds that the grant of the certificate of registration is not in the public interest. It is a matter of grave concern that in three proceedings so far (when PepsiCo was forced to withdraw its cases against Gujarat farmers in May 2019 unconditionally through a public campaign, later on when the certificate of registration was revoked in December 2021 and in the current judgement that dismissed PIH’s appeal), the matter of vexatious litigation against farmers has not been squarely addressed by adjudicating authorities as a matter of public interest,” said Kavitha Kuruganti.  

“Pepsi, which held a plant varietal certificate on a potato variety called FL-2027, had vexatiously and illegally sued several potato farmers in Gujarat in 2018 and 2019. The company did this despite the fact that India’s legislation on the subject of farmers’ seed rights is very unambiguous in its provisions entitling farmers to access any seed variety that they would like to, including protected varieties. It appears that Section 8’s duties imposed on the Authority for protecting farmers’ rights have to be constantly defended by alert citizens. The PPV&FR Authority can nonetheless make use of this order to reiterate and uphold the rights of farmers over the rights of IP registrants, in the letter and spirit as contained in the statute”, said Kapil Shah, an activist from Gujarat who was involved in defending the potato farmers right from the beginning.

On behalf of Kavitha Kuruganti, senior counsel Colin Gonsalves and his team Hetvi Patel and Rohit Saini (and Siddharth Seem in the initial stage) argued the matter which saw 12 hearings in the case, from May 19, 2022, to April 25, 2023, when the matter was reserved for judgement. The law firm J Sagar Associates has been representing PIH in court, according to a press release issued by Alliance for Sustainable & Holistic Agriculture (ASHA).