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LATEST NEWS UPDATES | Points of law in the PepsiCo-potato case -Biswajit Dhar

Points of law in the PepsiCo-potato case -Biswajit Dhar

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published Published on May 8, 2019   modified Modified on May 8, 2019
-The Hindu Business Line

India’s Protection of Plant Varieties Act spells out rights of farmers vis-a-vis breeders, which resulted in a pushback for PepsiCo

The Protection of Plant Varieties and Farmers’ Rights Act (PPVFRA), which introduced intellectual property protection in Indian agriculture, faced its biggest test in its implementation phase of nearly a decade and a half, when PepsiCo India initiated legal proceedings against four farmers in Gujarat for “illegally” growing its potato variety registered under the PPVFRA.

The company applied for the registration of two hybrid potato varieties FL 1867 and FL 2027 in February 2011. These varieties were registered under the PPVFRA in February 2016 for a period of 15 years. PepsiCo marketed the latter variety under the trademark FC-5, and now is claiming that the Gujarat farmers are illegally using this variety.

After the bases of the cases were questioned, especially by farmers’ organisations, the company withdrew its cases, not before trying to bind the farmers it had framed, into its contractual arrangements.

Many questions

PepsiCo may have withdrawn the cases against the farmers, but this unsavoury occurrence brought to the fore many questions that were asked when the PPVFRA was on the drawing board. These questions span from some of the contentious provisions of the Act, to the manner in which it is being implemented. If these issues are not dealt with in keeping the spirit of the law, and perhaps more importantly, their potential adverse implications on farming communities, farmer-breeder conflicts could become more frequent and this would only push the farmers into deeper crises.

The PPVFRA was enacted in 2001 after engaging debates were held in the country for more than a decade as to how intellectual property rights should be introduced in Indian agriculture after the country joined the World Trade Organisation in 1995 and agreed to implement the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

The choice before India was to either enact a law that protected the interests of farming communities, or to accept the framework of plant breeders’ rights given by the International Union for Protection of New Plant Varieties (better known by its French acronym, UPOV Convention). The latter option was rejected primarily because the current version of UPOV, which was adopted in 1991 (UPOV ’91), denies the farmers the freedom to re-use farm saved seeds and to exchange them with their neighbours.

Indian version

Therefore, in the PPVFRA, India introduced a chapter on Farmers’ Rights, which has three legs: one, farmers are recognised as plant breeders and they can register their varieties; two, farmers engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation are recognised and rewarded; and, three, protecting the traditional practices of the farmers of saving seeds from one harvest and using the saved seeds either for sowing for their next harvest or sharing them with their farm neighbours.

Article 39(1)(iv), which sanctifies the last-mentioned rights, states that farmers are “entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act” (emphasis added).

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The Hindu Business Line, 7 May, 2019, https://www.thehindubusinessline.com/opinion/points-of-law-in-the-pepsico-potato-case/article27060326.ece


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