PepsiCo India Holdings, the Indian subsidiary of the US beverages and snacks behemoth PepsiCo, may have withdrawn the infringement suit filed against Gujarat farmers for illegally growing a protected variety, but experts argued that there was no case even in the first place.

Those who were in the drafting committee of the Plant Varieties Protection Act in 2001 and subsequent formulation of rules in 2003, made sure that the interests of farmers are not sacrificed.

“We fought tooth and nail to protect the interest of farmers while drafting the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001,”said Suman Sahai of NGO Gene Campaign, who was in the drafting committee.

The pressure came mainly from seed companies and a section of agricultural scientists who thought that “intellectual property over seeds they developed would make them rich overnight,” said Biswajit Dhar, professor at the Centre for Economic Studies and Planning at the JNU, New Delhi.

Global trade bodies

Agriculture in India was originally outside the purview of intellectual property laws. Since the 1980s, India has been under pressure from the developed countries, and organisations such as the General Agreement on Tariffs and Trade (GATT) and later the World Trade Organisation (WTO), to bring plant varieties within the definition of intellectual property.

Under the WTO’s TRIPS agreement, India’s choice was to protect plant varieties by either allowing patentability or by enacting laws specific to their own societies (a “ sui generis system”), or by a combination of the two. India settled for the sui generis system, based on the concept of plant breeders’ rights.

No infringement

According to Sahai, there was no infringement in this case. Section 39 of PPV&FR Act gives enough rights to farmers to sow, re-sow, exchange, share, sell his farm produce including seeds of a variety protected under the Act.

PepsiCo registered FL 2027 (commercial name FC5) only in 2016. The variety has been around much before. “In other words, farmers were growing it before it became a protected variety. That itself is enough to make it a weak case,” said an activist working with farmers.

Moreover, PepsiCo, which has been working with farmers to multiply FC5 seeds and produce potatoes for making chips, has not been buying the entire stock from farmers. The country produces about 60,000 tonnes of the FC5 variety per year. “It was buying back only the best quality produce and seeds. What do you expect the farmers to do with the rest of the crop and seeds? They would obviously sell them in the open market,” the activist said.

If these are not enough, there are other clauses in the Act that guard farmers against a litigation. Section 42 of the Act protects them against the accusations of infringement. It says a farmer cannot be prosecuted on charges of infringement of another’s title to a variety if he or she affirms ignorance of the legal provision deemed to have been violated by him or her.

The suit indeed seems to be an attempt by the multinational to test the law and send a strong signal to the grey market, said a legal expert.

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