Delhi HC permits PepsiCo to claim patent for potato variety, reverses earlier order

Delhi HC rules in favour of PepsiCo

A division bench of Delhi High Court on January 9 held that New York-based PepsiCo can claim a patent for the potato variety grown exclusively for its popular Lay's potato chips.

The HC set aside the order of a single judge from July 2023, upholding the revocation of the patent by the Protection of Plant Varieties and Farmers' Rights (PPVFR) Authority in 2021. The HC has dismissed the contentions of Kavitha Kuruganti, a farmers' rights activist alleging that the company cannot claim a patent over a seed variety for the potato.

"The appeal of PepsiCo is allowed. We consequently also set aside the order of the Authority dated December 3, 2021, and the letter issued by the Authority dated February 11, 2022. The renewal application as made by PepsiCo shall stand restored on the file of the Registrar who shall dispose of the same in accordance with law," the judgment said.

PepsiCo set up its first potato chip plant in India in 1989. It supplies the particular potato seed variety to a group of farmers, who sell their produce only to the company at a fixed price.

The court has also junked the apprehension by Kuruganti that PepsiCo, by instituting various suits against farmers was acting contrary to public interest. The court said, "Apart from a mere reference to various suits alleging infringement, which are stated to have been filed by PepsiCo, the respondent failed to establish or prove that those suits were vexatious or that they had been instituted as part of predatory tactics of PepsiCo."

In 2019, PepsiCo sued some Indian farmers for cultivating the FC5 potato variety, accusing growers of infringing its patent. The company also sought more than Rs 10 crore ($121,050) each for alleged patent infringement. However, PepsiCo withdrew the suit in months.

In December 2021, the plant varieties protection authority PPV&FR revoked its varietal registration certificate, which was granted to the food and beverages major on a potato variety 'FL-2027' in the country. Reacting to the development, PepsiCo said it is in the process of reviewing the order passed by the Protection of Plant Varieties & Farmers’ Rights (PPV&FR) Authority.

PPV&FR is a statutory body set up under the Protection of Plant Varieties and Farmers’ Rights Act, 2001. The authority ruling came over a petition filed by farm activist Kavitha Kuruganti, contending that the grant of the certificate of registration to PepsiCo India was based on incorrect information furnished by it.

PepsioCo challenged this order at the Delhi High Court, wherein the above transpired.