On January 9, 2024, the Delhi High Court overturned a ruling from July 5, 2023, which had dismissed PepsiCo’s appeal to reverse an earlier decision revoking the protection for its potato plant variety FL 2027, known commercially as FC5. This variety, characterized by its lower moisture and sugar content, is particularly suitable for potato chip production and is utilized by PepsiCo for its Lay’s brand potato chips.
PepsiCo initially applied to register FL 2027 in India on February 18, 2011, mistakenly classifying it under the ‘new variety’ category instead of ‘extant variety’ at the Protection of Plant Varieties & Farmers’ Rights (PPVFR) Authority.
Despite this error, the registrar proceeded to register FL 2027 as an ‘extant variety’ after considering the revised application and declaration submitted by PepsiCo. The potato plant variety was registered in 2016 for a duration of 15 years under the Protection of Plant Varieties and Farmers’ Rights Act, 2001.
However, legal complications arose when PepsiCo filed a lawsuit against nine farmers from Gujarat in 2019 for alleged infringement of plant variety rights. PepsiCo sought compensation exceeding 10 million rupees (US$120,460) from each farmer, claiming they were not part of the contract farming arrangement it had established with farmers in India for FL 2027.
In response to backlash and resistance from farmer groups, PepsiCo withdrew the lawsuit by the end of 2019, opting for an amicable resolution. Nonetheless, farmers’ rights advocate Kavitha Kuruganti filed an application under Section 34 of the Plant Variety Act before the PPVFR Authority, seeking the revocation of the IP protection granted to FL 2027 due to discrepancies in the patent application process and alleged misinformation by PepsiCo.
On December 3, 2021, the PPVFR Authority revoked the Plant Variety Protection Certificate for FL 2027, prompting PepsiCo to appeal the decision before the Delhi High Court. However, the appeal was dismissed in July 2023, citing submission of incorrect information related to the date of the first commercial sale of the potato plant variety and inadequate documentation during the registration process.
Following another appeal filed by PepsiCo before the Division Bench (DB), the DB overturned the previous dismissal, citing specific grounds related to the application process and the timing of the first commercial sale. The DB concurred with the finding that the error in categorizing the variety as ‘new’ was remediable and did not warrant revocation. Additionally, the DB affirmed PepsiCo’s right to apply for registration under the ‘extant’ variety within 15 years from the date of the first sale, regardless of whether the date was based on commercialization in Chile or India.
Moreover, the DB clarified that the mere filing of a lawsuit against the farmers did not imply intimidation by PepsiCo.
Leave a Reply