India has revoked a patent for a variety of cultivated potatoes grown almost exclusively for PepsiCo’s Lay’s potato chips.
In 2019, PepsiCo sued several Indian farmers in the western state of Gujarat for planting a potato variety that the company patented, known as FC5 potatoes. This potato variety has a low moisture content, which is required to produce snacks such as chips.
PepsiCo argued that it has the right to patent the FC5 variety of potato because the company developed it itself. PepsiCo filed a patent for the potato variety in India in 2016.
The company set up its first potato chip plant in India in 1989. To supply this factory with potato chips, it first gave out FC5 variety potato seeds to farmers in 2009.
PepsiCo negotiated an exclusive contract with about 12,000 farmers in an area in northern Gujarat known as the “potato belt.” These farmers would grow the FC5 potatoes and sell their produce to the company for a fixed price.
In April 2019, PepsiCo filed rights infringement cases against nine farmers in Gujarat, alleging that they were not part of the company’s “collaborative farming program.” The lawsuits PepsiCo filed included a 4.2 million rupee ($557,000) lawsuit against four small farmers.
The state government of Gujarat intervened and forced the company into withdrawing all of its cases a month later as they coincided with the election season and widespread protests and boycott threats by groups of farmers all over the state.
The company said it withdrew the cases without any government intervention, claiming that it wanted to settle the issue with the farmers amicably.
In June 2019, Kavitha Kuruganti, a farmer’s rights activist and leader of the Alliance for Sustainable and Holistic Agriculture, filed a petition to revoke PepsiCo’s registration of the FC5 potato. She wanted the company to lose its right to decide what kind of potatoes Indian farmers could and could not plant.
Kuruganti petitioned the Protection of Plant Varieties and Farmers’ Rights Authority (PPVFR) to revoke the intellectual protections granted to PepsiCo’s FC5 potato. She argued that India’s laws do not allow companies to place patents on seed varieties. (Related: ‘If you own the seeds you own the food system:’ campaigners demand public ownership to counter Big Ag privatization.)
The PPVFR agreed with Kuruganti’s petition and immediately revoked PepsiCo’s patent on the FC5 potato. The PPVFR Authority questioned the documentation provided by PepsiCo that would supposedly prove that it was the sole owner of the FC5 potato variety and could thus be considered its “Registered Breeder” under Indian law.
The Authority also accepted Kuruganti’s claim that “several farmers have been put to hardship including the looming possibility of having to pay a huge penalty on the purported infringement they were supposed to have been committing.”
“This violates public interest,” wrote PPVFR chairperson K.V. Prabhu.
“The Authority’s acceptance of the Revocation Application, including on grounds of being against public interest, sends an important signal that farmers’ rights cannot be taken lightly by IPR-holders in the country,” said legal researcher and agricultural intellectual property expert Shalini Bhutani. “This should prevent further intimidation of farmers through vexatious IP lawsuits.”
“PepsiCo India Holding itself cannot get misadventurous with intimidation and harassment of farmers in the name of IPR infringement,” wrote Kuruganti on her personal Twitter account.
“This judgment is a historic victory for the farmers of India. It should also prevent any other seed or food corporation from transgressing legally granted farmers seed freedoms in India.”
“We believe that the authority and the government have a responsibility to let every applicant and registrant under the PPVFR Act know that their rights do not supersede farmers’ rights,” said Kapil Shah, a Gujarat-based activist who joined the protests against PepsiCo.
“The registrants’ rights are limited to only production of a variety, and not production from a variety. Even when it comes to production of a variety, farmers have rights to produce seed and even sell seed of a protected variety provided it is unbranded.”
Potato farmers all over Gujarat called the PPVFR Authority’s ruling a victory for growers everywhere.
“The order is a big victory for farmers of India, and reaffirms their right to cultivate any crops,” said Bipin Patel, one of the farmers originally sued by Pepsi in 2019.
A PepsiCo India spokesman said: “We are aware of the order passed by the PPVFR Authority and are in the process of reviewing the same.”
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