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Incorrect Information by PepsiCo Leads to Revocation of its Potatoes Variety

posted 3 months ago

By Ranjan Narula and Suvarna Pandey

The onus of providing correct information in the application is on the applicant, and the applicant cannot shift this onus on the Authority or, having given incorrect information, plead that no difference would have resulted in the consideration of the application had correct information been provided by the applicant. As noted herein above, the Act confers statutory rights on the applicant that were otherwise not available to the applicant but for the Act. The applicant must, therefore, be put to strict and vigilant compliance with the requirements of the Act.

This case deals with the revocation of registration granted to PepsiCo India Holdings Pvt. Ltd. (PepsiCo) on its FL2027 9 (commercial name – FC-5) variety of potatoes under the Protection of Plant Varieties and Farmers Rights Authority (PPVFRA). 

Background 

·         PepsiCo applied for registration of FL2027 variety under the PPVFRA on 18 Feb 2011. The registration was revoked on an application filed by Kavitha Kurungati (the farmer’s rights activist), majorly because the variety was not new but an extant variety. 

·         PPVFRA found that PepsiCo had provided a wrong first date of commercialization of the variety (17 Dec 2009) when it was already commercialized the same variety in 2002 in Chile. 

·         Based on the petition, PPVFRA revoked the protection of PepsiCo in December 2021 and rejected PepsiCo’s application for renewal in February 2022. 

·         PepsiCo filed an appeal and challenged PPVFRA order before Delhi High Court. The Delhi High Court dismissed the Appeal filed by PepsiCo on the basis that PepsiCo had furnished incorrect information about the first sale of potato variety in 2009, used to get the registration certificate. 

Court’s Ruling 

The essential facts and issues dealt with by Court are mentioned below:

·         PepsiCo/appellant argued that while seeking registration, it had in the form ticked the box against “new variety” instead of “extant variety”. The Registrar, without insisting upon the appellant to amend its application, considered the application as one filed for seeking registration of FL 2027 as an “extant variety” and granted registration. The appellant submitted that the error occurred because the form was not clear on whether the date of the first sale in India had to be mentioned or the first sale in any other part of the world had to mentioned. 

·         The respondent stated that PepsiCo intentionally gave an incorrect date for the first sale, as the appellant would have otherwise not been entitled to seek registration considering 15 years had passed from the date of the first sale. 

·         The Court opined that the form is clear in as much as under the heading “Has the candidate variety been commercialised or otherwise exploited”, immediately after asking the applicant of the “date of first sale of the variety”, it seeks from the applicant the “country(ies) where protection is made”. There was, therefore, no occasion for the appellant to misconstrue the said provision in the form, as seeking the date of the first sale made only in India. 

·         This information is also important, as Rule 22(2A) of PPVFRA provides that the registration to “extant variety” shall not be granted if, on the date of the application, 15 years have passed from the date of the first sale. The date of the first exploitation/sale was, therefore, important and material information for the application. The Court found that the PepsiCo had also provided an incorrect first date of commercialization of the variety (17 Dec 2009), when it was already commercialized in 2002 in Chile. 

·         The Court concluded that the Registrar, on the initial application filed by the appellant, had raised queries and granted an opportunity to the appellant to rectify the mistakes/deficiencies. The appellant filed an amended application, however, again with the deficiencies. Therefore, despite the opportunity granted, the application filed by the appellant did not conform with the Act, the Rules, and the Regulations. 

·         On the ground of the incorrect date of commercialization of the variety given by the appellant in its application, the Court observed that the onus of providing correct information in the application is on the applicant, and the applicant cannot shift this onus on the Authority.

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