Delhi High Court upholds revocation of PepsiCo India’s potato variety patent

INDIA – The Delhi High Court has revoked the intellectual property protection granted to PepsiCo India Holdings Pvt. Ltd with respect to a potato variety developed by the company.

In delievering its ruling, the court faulted the food company for wrongly applying for registration of the variety under the category of “new variety” and giving an incorrect date for its first commercialization.

FL 2027, the variety, is a potato variety with high dry matter and low sugar content better suited for making chips. Normal table potatoes have more moisture, which adds to dehydration and energy costs during processing, and higher sugar, which causes blackening on frying.

The variety was developed in 1996 by Robert W Hoopes, a US breeder employed with Frito-Lay Agricultural Research, a division of PepsiCo Inc.

PepsiCo India has been manufacturing potato chips sold under its Lay’s brand using this processing-grade variety, which is grown by some 14,000 farmers in India via contract cultivation and buy-back at pre-fixed rates.

The company was granted a certificate of registration for FL 2027 as an “extant variety” on February 1, 2016.

The validity period – during which nobody else could commercially produce, sell, market, distribute, import, or export it without the breeder’s authorization – was six years from the date of registration, but is extendable up to 15 years.

Later in 2021, the Protection of Plant Varieties and Farmers’ Rights Authority (PPVFRA) revoked PepsiCo India’s certification and issued a letter on February 11, 2022, rejecting PepsiCo India’s application for renewal of its registration.

According to PPVFRA, a “new variety” had to conform to the criterion of novelty that required the propagated or harvested material from it not to have been sold in India earlier than one year before the date of filing the application for registration.

 Having failed the test of novelty, FL 2027 could only have been granted registration as an “extant variety”. Such a variety could satisfy only the criteria of distinctiveness, uniformity, and stability, but not novelty.

PepsiCo was also found to have given the first date of sale of the variety in its application as December 17, 2009, when it had already been commercialized in 2002 in Chile.

The single-judge bench of Justice Navin Chawla said it found “no ground for interference with the impugned order” explaining that any protection granted for a plant variety is subject to the applicant making a complete disclosure of his claimed invention/development.

This is like the requirements of the Patents Act, “which also grants a monopoly in exchange for a complete disclosure,” the court ruled.

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