Delhi HC dismisses PepsiCo’s plea against revocation order on its IPR certificate for potato variety

Delhi HC dismisses PepsiCo’s plea against revocation order on its IPR certificate for potato variety

Subject :Science and Technology

Section: IPR

Context:

• The Delhi High Court on July 5, 2023, dismissed an appeal filed by PepsiCo India Holdings (PIH) against a 2021 order that had revoked the PVP (plant variety protection) certificate granted to the company for a potato variety (FL-2027).

Details:

• The three proceedings include:
  • PepsiCo being forced to withdraw its cases against Gujarat farmers in May 2019 unconditionally through a public campaign
  • The certificate of registration being revoked in December 2021
  • The current judgement that dismissed PIH’s appeal
• The provisions in the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act offer seed freedoms for farmers, entitling them with saving, using, sowing, resowing, exchanging, sharing or selling the farm produce including a particular variety of seed protected under the Act in an unbranded manner.
• The court observed that PIH had ticked the variety as ‘New variety’ instead of ‘extant variety’ which is a crop variety that exists in a country.
• It also noted the incorrect information provided by the company regarding the mention of date of first sale which was informed as 2009 in India, against 2002 in Chile.
• The judgement was also upheld on the grounds of ineligible registrant and failure to provide necessary documents under various provisions of the Act.
• The order also mentioned that ‘any person interested’ in applying for the revocation of a certificate granted would fall within the scope of a “public-spirited person”.

About the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act 2001:

• Enacted by India in 2001 adopting sui generis system.
• It is in conformity with International Union for the Protection of New Varieties of Plants (UPOV), 1978.
• The aim of the act is the establishment of an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plant.
• The act also establishes the Protection of Plant Varieties and Farmers’ Rights Authority under the Ministry of Agriculture and Farmers Welfare.
• The major function of Authority includes:
  • Registration of new plant varieties;
  • Documentation of varieties registered;
  • Preservation of plant genetic resources;
  • Maintenance of the National Register of Plant Varieties and
  • Maintenance of National Gene Bank (for conserving seeds of registered varieties).
• The legislation recognizes the contributions of both commercial plant breeders and farmers in plant breeding activity and also provides to implement TRIPs in a way that supports the specific socio-economic interests of all the stakeholders including private, public sectors and research institutions, as well as resource-constrained farmers.
• Rights under the Act:
  • Breeders’ Rights: Breeders (Seed Producers) will have exclusive rights to produce, sell, market, distribute, import or export the protected variety.
    • A breeder can exercise civil remedy in case of infringement of rights
  • Researchers’ Rights: Researchers can use any of the registered varieties under the Act for conducting an experiment or research.
    • Researchers can use the initial source of variety for the purpose of developing another variety but repeated use needs the prior permission of the registered breeder.
  • Farmers’ Rights: A farmer who has evolved or developed a new variety is entitled to registration and protection in like manner as a breeder of a variety.
    • A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under the PPV&FR Act, 2001
    • However, the farmer shall not be entitled to sell branded seeds of a variety protected under the PPV&FR Act, 2001.
    • There is also a provision for compensation to the farmers for non-performance of variety.
    • The farmer shall not be liable to pay any fee in any proceeding before the Authority or Registrar or the Tribunal or the High Court under the Act.
    • Farmers are eligible for recognition and rewards for the conservation of Plant Genetic Resources of landraces and wild relatives of economic plants.

Trade-Related Aspects of Intellectual Property Rights (TRIPS):

• About:
  • The TRIPS agreement is part of the international legal order on trade enshrined in the World Trade Organisation (WTO).
• Year:
  • It was negotiated in 1995 at the WTO.
  • The WTO adopted the Doha Declaration in 2001, which clarified that in the event of a public health emergency, governments could compel companies to licence their patents to manufacturers even if they did not think the offered price was acceptable.
• Aim: 
  • To guarantee minimum standards of IP protection
  • Provide legal consistency that enables innovators to monetize their intellectual property in multiple countries.
• Areas covered:
  • The areas of intellectual property that it covers are: 
    • copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations);
    • trademarks including service marks;
    • geographical indications including appellations of origin;
    • industrial designs;
    • patents including the protection of new varieties of plants;
    • the layout-designs of integrated circuits;
    • undisclosed information including trade secrets and test data.
• Role:
  • It plays a central role in facilitating trade in knowledge and creativity, in resolving trade disputes over IP, and in assuring WTO members the latitude to achieve their domestic policy objectives.
• Benefits: 
  • Under the TRIPS agreement, the Governments can compel companies to license their patents to other manufacturers, (even if companied think the offered price is not acceptable) in case of a public health emergency.
• Latest Proposal:
  • The core idea behind the proposal is that intellectual property (IP) rights such as patents should not become a barrier in scaling up the production of medical products like vaccines, diagnostics and therapeutics essential to combat Covid-19.

International Union for the Protection of New Varieties of Plants (UPOV):

• The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organization with headquarters in Geneva (Switzerland).
• UPOV was established by the International Convention for the Protection of New Varieties of Plants. The Convention was adopted in Paris in 1961 and it was revised in 1972, 1978 and 1991.
• UPOV’s mission is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society.
• The UPOV Convention provides the basis for members to encourage plant breeding by granting breeders of new plant varieties an intellectual property right: the breeder’s right.
• In the case of a variety protected by a breeder’s right, the authorization of the breeder is required to propagate the variety for commercial purposes. The breeder’s right is granted by the individual UPOV member
• Only the breeder of a new plant variety can protect that new plant variety. It is not permitted for someone other than the breeder to obtain the protection of a variety.
• There are no restrictions on who can be considered to be a breeder under the UPOV system: a breeder might be an individual, a farmer, a researcher, a public institute, a private company etc.
• India is not a member.