Revoke of IPR licenses given to PepsiCo and farmers implication

1. ASSESSMENT OF ARGI IPR (THE PROTECTION OF PLANT
VARIETIES & FARMERS' RIGHTS (PPV&FR) ACT, (2001)” IN RELATION TO
REVOCATION OF PEPSICO’S POTATO
BHAWNA SRIVASTAVA
Department of Zoology
DAV College, Kanpur U.P.

4.  The Protection of Plant Varieties & Farmers' Rights (PPV&FR) Act, (2001)
which contain 11 chapters and 97 clauses.
 It is a dual right – one is for the variety and the other is for the
value assigned to it by the breeder.
Objectives of the PPVFR Act
Facilitate an effective system for the protection of plant varieties & the
rights of farmers.
•Encourage the development of new varieties of plants.
•Protect the rights of the farmers in respect of their contribution in
conserving plant genetic resources.
•Facilitate the growth of the seed industry which will ensure the availability
of high quality seeds.
• Farmers are entitled to save, use, sow, re-sow, exchange, share or sell their farm
produce, including seed of protected varieties

5. Salient features of (PPV&FR) Act, 2001
Effective system: The act seeks to establish an effective system for the protection
of plant varieties, the rights of farmers and plant breeders and to promote the
development of new varieties of plant.
Effective Authority:
•The act also creates Protection of Plant Varieties and Farmers’ Rights
Authority under the Ministry of Agriculture and Farmers Welfare.
•The primary function of Authority includes Registration of new plant varieties,
documentation of varieties registered, Preservation of plant genetic resource,
Maintenance of the National Register of Plant Varieties and Maintenance of National
Gene Bank (for conserving seeds of registered varieties).

6. Rights under the Act
•Breeders’ Rights: Breeders (Seed Producers) will have exclusive rights to produce, sell, market,
distribute, import or export the protected variety. They can opt for civil remedy in case of infringement of
rights.
•Researchers’ Rights: Researcher can utilize any of the registered variety under the Act for the
purposes of experiment or research.
•Initial usage for developing another variety is permitted but repeated use requires the prior permission
of the registered breeder.
•Farmers’ Rights: A farmer who has evolved or developed a new variety is entitled to get
registration and protection just like 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 seed 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.

10. Kavitha Kuruganti is a Bangalore-based social activist
intent on empowering farmers and improving sustainable
farm livelihoods. Trained as a Development
Communicator, she has been working in the field of
sustainable agriculture and democratization of science &
technology for more than 27 years now. She is part of
volunteer-driven national networks like ASHA (Alliance
for Sustainable & Holistic Agriculture) and MAKAAM
(Mahila Kisan Adhikaar Manch). She served as a
Member in the Government of India’s Ramesh Chand
Committee on MSP fixing formula in India, High-Level
Committee on the Status of Women in India,

11. Kavitha Kuruganti, contended the grant of the certificate of registration (intellectual
property right (IPR ) to PepsiCo India) PepsiCo India on a potato variety was based
on incorrect information furnished by it.
The farmers’ perspective
•Farmers groups have argued that section 39 of the Protection of Plant Varieties and Farmers’
Rights (PPV&FR) Act, 2001 allows any farmer to grow or sell produce even of registered varieties so
long as he does not sell branded seed.
•Farmers also claim that the contract agreement was only that PepsiCo would collect potatoes of
diameter greater than 45 mm. Farmers would store the smaller potatoes for sowing next year.
•Thus the farmers have asked the government to interfere on their behalf and requested Protection of
Plant Varieties and Farmers’ Rights Authority (PPV&FRA) to make a submission in court and fund legal
costs by means of the National Gene Fund.
What is seed sovereignty?
Seed sovereignty reclaims seeds and biodiversity as commons and the public good. It protects the
farmer’s rights to breed and exchange diverse open source seeds which can be saved and which are not
patented, genetically modified, owned or controlled by emerging seed giants.

12. Revocation of the varietal registration and the reasons thereof.
On 3rd December, 2021 the registration of PepsiCo on the potato variety FL-2027 was
revoked in accordance with Section 34. It was noted that the grant of the certificate
of registration and
1. Absence of proper documents for registration.
2. Hardship to farmers and so matter of public interest.
The decision has been seen as a historic victory for the farmers in India and as a
precedent that anything threatening the farmer's right under section 39 would be a
matter of public interest and ought to dealt accordingly. This decision would act as
warning against attempts of "any other seed or food company from transgressing
legally granted farmers' seed freedoms in India".6

13. National Gene Fund:
•In 2007, the National Gene Fund was created under the PPV&FR Act 2001.
•With an initial amount of Rs 50 lakh from the Central government and gets a regular contribution
from the amount paid by plant breeders as registration and annual fee.
Why is the PPV&FR Act 2001 significant?
•The UPOV (International Union for the Protection of New Varieties of Plants) 1991 provides
breeders the right to supervise all aspects of a farmer’s activity. It prohibits farmers from re-using
seeds without breeders’ permission.
•India, Japan, and Canada, besides other developing countries, have voiced their reservations
against UPOV.
•India has consciously departed from the provisions of UPOV 1991 by enacting PPV&FR Act in
2001 to give farmers free access to seeds.
•The argument that food should be kept out of rigid patent-like frameworks gains importance here
as the seed sovereignty ( should be maintained at all costs for food security in India.
•Notably, the indigenous varieties of rice have been reduced extinct due to the propagation of
hybrids by the seed giants.
बीज संप्रभुता

14. The Pepsico company claimed that farmers violated its patent rights by cultivating the
potato variety used in its chips product named –Lays-.
PepsiCo has invoked Section 64 of the Protection of Plant Varieties and Farmers’ Rights
(PPV&FR) Act, 2001 to claim infringement of its rights. The section prohibits anyone
other than the breeder of seeds or a registered licensee of that variety to sell, export,
import or cultivate such variety.
Note: The FC-5 variety, used to make Lay’s chips, is grown under a contract farming
deal, by 12,000 farmers in Gujarat’s Sabarkantha district.
Some farmers in Gujarat who are not under any contract with PepsiCo were allegedly
cultivating a variety of potato named FL 2027, also called FC5, on which PepsiCo
claimed exclusive rights by virtue of a Plant Variety Certificate (PVC).
This issue highlights the importance of seed sovereignty and the role played by the
Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001 in protecting
the rights of the farmers and prevent seed monopoly.

15. Criticism of PPVFR Act, 2001
•Discourages research & innovation: PPVFR Act allows
farmers to use patented varieties & hence private
companies are not keen to bring new technology.
•India neither invests in public sector nor respects private
& foreign players’ IPR (bad for business).

16. Way ahead
 A biodiversity-rich nation like India must shift its agriculture from a high-yield ideal to a
high-value one to minimise environmental harm while maximising farmer welfare.
 Conservation and improvement of traditional/desi (heterogenous) seeds in situ should be
promoted.
 Small farmers must be educated and encouraged with proper incentive structures in this
line.
 A permanent record-keeping system, like blockchain software is needed for tracking of
seeds/propagation materials and the genetic resources.
 The monetary returns would effectively incentivise continuous cultivation and improvement
of indigenous seeds. It will also ensure sustainable growth of agriculture and of rural
communities.
 India’s invaluable traditional ecological knowledge systems need to be revived. It should be
made a part of mainstream agricultural research, education and extension services.
 Government efforts should balance among the aspects of providing for new varieties,

17. What is the way forward?
•There should be no compromise on farmers’ rights and seed sovereignty.
•The government should not surrender to corporate lobbying and should make the PPV&FR Act
as the basis of any settlement.
•The government should create clear mechanisms to avoid a repetition of this episode in the
future. For this purpose, all Certificates of Registration should clearly mention that any rights
associated with it are conditional to some other sections of Protection of Plant Varieties & Farmers
Rights (PPV&FR) Act 2001.
•Loopholes in the PPVFR Act must be plugged. They are being misused by some in the seed
industry to avoid paying royalties or to sell seed that is not approved by regulators.
•Moreover, it is worth understanding that farmers cannot throw away the undersize potatoes of
varieties (including protected ones) which the contract buyers reject. They will save some for own
use; the rest they will sell for consumption or as seed. Such sales are legitimate because the
contract buyers got the right of first refusal. It should be included as a new provision under the
PPV&FR Act.

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