Plant Variety Authority Revokes The Breeder's Right: Is This A New Chapter For The Protection Of Plant Varieties And Farmers' Rights Act,2001 ?

Relevant Facts And Issues Of The Case

The matter has been brought before the Plant Variety Authority as a revocation application seeking the cancellation of Pepsico India Holding Ltd's breeders right over FL 2027 variety of potato . There are two main legal points that have been put for consideration by the Plant Variety Authority based on the complaint from Kavita Kuruganti, a civil society worker representing farmer's interests. The points are: 1)Registration of plant variety is based on incorrect information furnished by the applicant and lack of eligibility for protection under the PPVFRA. The revocation complainant allege that Pepsico has not provided requisite documents and information to the registry. 2 ) Not conformity with the PPVFRA requirements and the breeders rights being provided to PepsiCo acts contrary to the public interest. The infringement proceedings against farmers and seeking compensation is stated as a major reason for PepsiCo's conduct being against public interest.

The Pepsico India Holding Ltd have denied the claims of lack of eligibility and incorrect information being furnished. Moreover the significant amount of research and development spending has been cited along with the effort Pepsico India Holding Ltd undertake for working with the partnering farmers. Pepsico denies to have violated the farmers rights to grow the variety and claims exclusive right over the FL2027 variety.

Overview Of The Decision

The Plant Variety Authority based on the examination of the Pepsico's application for breeders right registration noted there has been major procedural short coming. The fact of filing for a new variety and then subsequent change to an extant variety was noted by the Plant Variety Authority. Moreover the date of first sale of FL2027 variety was not correctly provided by Pepsico as noted by the Plant Variety Authority. The date of first sale is significant for the purpose of ascertaining the novelty under the PPVFRA. The lack of proper documentary proof regarding the ownership over the plant variety was examined by the Plant Variety Authority and no clear assignment right over the plant variety was able to be produced by the PepsiCo company. Pepsi Co claimed an oral assignment of right over the FL2027 variety, which was denied by the Plant Variety Authority on the ground that Section 18 read with the Rule 27(2) of PPV&FR Rules, 2003 doesn't recognize any oral assignment. The lapse from the side of the plant variety registry allowing for an incomplete application to be processed and recognising the breeders right was noted.

The Plant Variety Authority examined whether the revocation of the breeders right could be invoked under Section 34 of the PPVFRA and confirms the same. The fact that a revocation application being filed by a public spirited citizen, interested in the farmers welfare was noted and Plant Variety Authority in its decision allowed the application as it is in the interest of public interest and even though Ms.Kavitha Kuruganti is not directly affected by the FL2027 registration. The fact that Pepsico had earlier filed infringement suits claiming huge compensation from the farmers was emphasised by the Chairperson of Plant Variety Authority in the decision.

Ms.Kavitha Kuruganti revocation application has also claimed frivolous infringement claim against the farmers as one strong public interest reason for cancellation of the breeders rights on FL2027 variety. The Plant Variety Authority have taken serious note of the infringement proceedings against the farmers. The action of infringement action against the farmers was held to be against public interest as Pepsico was not a legitimate breeder of FL2027 variety and had put the farmers through hardship of seeking major compensation.

Based on the above points the Plant Variety Authority allowed the revocation application under the Sections 34 (a), (b),(c) and (h) of PPV&FR Act, 2001 and cancelled the registration of Pepsico breeders right over FL2027 variety.

Analysing The Impact Of The Decision

The cancellation of breeders rights points towards a significant assertion of the Indian brand of plant variety protection. While the breeder's rights are protected through the legislation under sections, the regulatory scrutiny would be significant the post- PepsiCo's breeders right revocation decision. This decision points towards the need for a better scrutiny mechanism in the plant variety protection regulatory process. The lack of regulatory capacity in the plant variety protection registry is evidently visible in the Indian scenario. From the breeder's right perspective, it is significant to have first sale information, assignment right details and provide non-contradictory information in the application. The impact of the decision on the respondent would be limited as the right was due to expire within a short period of time. But it is also significant to note that the right to extend the breeders right is lost.

The public interest element that is explored in the decision would have long term ramification over the possible practice of corporate breeder's to file legal proceedings against the small and marginal farmers. While the PPVFRA provides a very limited right of production for the breeders, it is not exclusive in nature. Farmers have elaborate rights to deal in unbranded seeds. Section 39(1)(iv) of the PPVFRA provides that a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under the legislation in an unbranded manner. Hence the issue of aggressive legal action against possible infringement of the breeders rights have to weighed against the chances of retaliatory legal actions on the lines PespiCo had to face.

The author is an Assistant Professor of Law at Indian Institute of Management, Kozhikode. Views are personal.