Pepsico vs farmers: Plant varieties cannot be patented, emphasise legal experts

Food giant PepsiCo India, last week, formally withdrew cases it had filed against nine potato farmers in Gujarat. The multinational corporation was seeking Rs. 1.05 crores (Rs. 10.5 million) from each of the farmers, for infringement on a variety of potato, patented by Pepsico, commercially known as FC5 and grown exclusively for its potato chips brand.

Embroiled in public controversy, the case has raised discussions around seed patents and agricultural laws. Indian geneticist and one of the architects of India’s Protection of Plant Variety and Farmers Right Act, 2001 (PPVFR Act), Dr. M.S. Swaminathan, in an email conversation with Mongabay-India, emphasised that there are no laws in India that allow for patenting plants.

Swaminathan said the law is very clear and such claims of royalties are not tenable. “Our Plant Variety Protection and Farmers‘ Rights Act, which I helped to draft, is the first one in the world which confers equal right to farmers for their contribution to conservation and to breeders for converting genetic material into commercial variety,” he said in an email.

“The claim to royalty for the FC5 potato (the variety which Pepisco is suing farmers for) is not tenable. In rice, for example, there are nearly 150,000 varieties in nature, largely selected by farm women. Introducing royalty will lead to promoting conflicts of ownership and will impede the progress of agriculture,” he added.

According to the PPVFR Act, “A farmer’s entitled to save, use, sow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act: Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.”

The PPVFR Act was passed in 2001 after both the Rajya Sabha and Lok Sabha passed the bill in the parliament. It is considered to be the first Act in the world to consider both farmers’ and the breeders’ rights.

Legal experts say it is also not possible to hold patents of plant varieties in India. “The Patents Act is clear that plants in whole or part, including seeds, varieties and species and essentially biological processes for production/propagation of plants are not patentable inventions,” independent legal researcher Shalini Bhutani told Mongabay-India.

Pepsico has issued a statement on May 2, which said: “To safeguard the larger interest of farmers, PepsiCo India was compelled to take judicial recourse to protect its registered variety. PepsiCo from the very start had also offered an amicable settlement to farmers.”

The statement further read: “After discussions with the Government, the Company has agreed to withdraw cases against farmers. We are relying on the said discussions to find a long term and an amicable resolution of all issues around seed protection.”

The larger fight of the farmers, against corporations impeding on their rights, is not over yet, activists say. “This development today in no way means that the public campaign is over. While the defendant farmers at least have the profit-hungry MNC off their back in court, the battle is only half won on the field. The government of India had maintained an ominous silence on the legal situation in the country on farmers’ seed freedoms, taking cover of the matter being sub judice. Now it must make it amply clear that such litigation is not acceptable,” a statement from Alliance for Sustainable and Holistic Agriculture (ASHA), a collective for promoting sustainable agriculture and rights of cultivators, said.

“It is not clear what is being negotiated. Why should there be any further discussions when the law is so unambiguous? The law clearly says farmers can grow any crop variety without anyone’s permission,” said Kavitha Kuruganthi of ASHA. “The fact that it did not happen fast enough (the withdrawal of the case by Pepsico), shows that it tried to negotiate the interpretation of the Act, or bind the farmers in some way or the other. That is not acceptable,” she added.

On April 8, the Ahmedabad Commercial Court had passed an injunction order saying that farmers cannot grow or sell potato varieties registered by Pepsico till the next hearing – which happened April 26. “This means it remained illegal for farmers to grow or sell Pepsi’s registered variety of potato, till the case was formally withdrawn,” said Bhutani.

Banner image: Potato chips. Photo by Biswarup Ganguly.