You Say Potato, I Say Property Rights

A battle between PepsiCo and Indian farmers highlights the gap between international trade law and countries seeking to protect their farmers’ seed rights.

By Shalini Bhutani, New Delhi

NEW DELHI, July 21 – India is in an ongoing legal battle over a potato, with the next skirmish set to come before Delhi’s High Court in late July.

On one side is PepsiCo, a food and beverage multinational armed with intellectual property (IP); on the other are farmers, and the Indian law designed to protect their seed rights.

At play is the diversity of food on our dinner plates, and crucially, farmers’ ability to freely produce a variety of plants and their seeds year after year.

The battle all stems from India’s decision to forge its own path to protect farmers’ rights, but still comply with international trade laws. Using the flexibilities in World Trade Organization (WTO) rules on IP, contained in the TRIPS Agreement, India’s Patents Act considers plants, animals and seeds as inventions that are not patentable.

When India chose to exercise the option in the TRIPS Agreement not to grant patents on plants, like many other developing countries it was shown the route of the industry-led UPOV Convention, which covers new plant varieties, as a possible way of remaining compliant with the WTO rules by providing some form of IP on plants.

The International Seed Federation (ISF), representing the global seed industry, says the UPOV Convention is the most appropriate IP tool for plant breeders. It offers ‘plant variety protection (PVP)’, giving IP holders such as PepsiCo the exclusive right to reproduce seeds (unless national governments insist on farmers’ rights).

When enforced under IP law and grower contracts, it can violate the rights of seed farmers.

India chose another legitimate option available to WTO members: the sui generis way. It designed its own unique PVP law, which recognises farmers’ rights and regards them as breeders too.

India is not a member of the UPOV Convention, but it is a member, along with 148 other countries, of the seed treaty, the international law that recognises farmers’ rights.

India is co-chair of the treaty’s expert group on farmers’ rights, representing developing economies; the other co-chair is from Norway, representing developed economies.

As India prepares to host another round of talks on the seed treaty in September, the PepsiCo case shows the importance of reviewing the influence of international trade laws against how governments design and implement farmers’ rights in their national laws.

The intent of India’s lawmakers is clear from the farmers’ rights chapter they added to the national plant variety protection law more than two decades ago, recognising a farmer as a breeder as well, but also expressly wording the law to entitle farmers to “save, use, sow, resow, exchange, share or sell [their] farm produce”.

These legally recognised farmers’ entitlements were extended to the seed of a plant variety that is granted plant variety protection under this law. This is also in line with the seed treaty.

The farmers’ rights provisions were tested in the PepsiCo cases of 2018 and 2019. The Indian subsidiary of the US company PepsiCo filed cases in courts in the state of Gujarat alleging that farmers had violated its IP rights, granted under Indian law, over the potato variety from which it makes its Lay’s chips.

Indian law makes it clear that farmers’ seed rights are “notwithstanding anything contained in the Act”. This clarifies that other legal provisions recognising holders of IP rights under the Act are subject to farmers’ rights.

But the company misinterpreted the so-called plant breeder rights (“to produce, sell, market, distribute, import or export” the potato variety) provided in the Act, by virtue of a certificate of registration given to the company, and acted as if it owned that particular variety of potato.

In December 2021, India revoked PepsiCo’s registration of the potato variety. The company has appealed to the High Court of Delhi, seeking a stay on the revocation order as well as on the rejection of the company’s IP rights renewal application. The case is scheduled to be heard on 21 July 2022.

The rights of Indian farmers are not just in black and white in Indian plant variety protection law. 

The United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas, adopted in 2018, contains a very clear directive to nation states to “ensure that seed policies, plant variety protection and other intellectual property laws, certification schemes and seed marketing laws respect and take into account the rights, needs and realities of peasants and other people working in rural areas”.

It is often assumed that the users of IP-protected processes and products are predominantly in resource-poor countries. But the original producers of seeds in the biodiversity-rich Global South are farmers. In other words, the innovators are the farmers themselves.

As stated in the seed treaty, “the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centres of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world”has to be recognised.

PVP laws, if they are designed or implemented in disregard of farmers’ contributions and seed rights, put at risk the very knowledge systems that feed us. There is a global movement away from IP on seeds and towards more ‘open source’ seed systems.

As newer planetary crises emerge, local varieties that ensure agro-biodiversity and are more climate resilient need to be mainstreamed. This makes the ethic of sharing that is at the centre of farmer-managed seed systems a fundamental principle to protect and promote.

Shalini Bhutani is a legal researcher and policy analyst. She has been guest faculty at various universities, including the National Law University, Delhi. She is a consultant with the UN Food and Agriculture Organization (FAO) in India.

Article courtesy of 360info.

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