• PepsiCo challenged a PPVFRA order revoking the registration for PepsiCo’s FL2027 variety of potato
• The court dismissed the appeal, finding that PepsiCo had provided incorrect information as to the date of first sale of its potato variety
• The date of the first exploitation/sale constitutes important and material information for the application

“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 above, the [Protection of Plant Variety and Farmers Rights Act 2001] confers statutory rights on the applicant which 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.”

(PepsiCo v Kuruganti)

PepsiCo India Holdings Pvt Ltd v Kuruganti (CA (COMM.IPD-PV) 2/2022, 5 July 2023) dealt with the revocation of a registration granted to PepsiCo India Holdings Pvt Ltd for its FL2027 variety of potatoes (commercial name FC-5) by the Protection of Plant Varieties and Farmers Rights Authority (PPVFRA).

Background

PepsiCo applied for registration of the FL2027 variety by the PPVFRA on 18 February 2011. The registration was revoked following an application filed by Kavitha Kurungati (a farmers’ rights activist), mainly because FL2027 was not a ‘new variety’, but an ‘extant variety’.

The PPVFRA found that PepsiCo had provided a wrong first date of commercialisation of the variety (17 December 2009), as it had already commercialised the same variety in 2002 in Chile. The PPVFRA revoked the protection in December 2021 and rejected PepsiCo’s application for renewal in February 2022.

PepsiCo filed an appeal and challenged the PPVFRA’s order before the Delhi High Court. The Delhi High Court dismissed the appeal on the basis that PepsiCo had furnished incorrect information about the first sale of its potato variety, which was used to obtain the registration certificate.

Decision

PepsiCo argued that, when seeking registration, it had ticked the box ‘new variety’ instead of ‘extant variety’ in the form. The registrar, without insisting that PepsiCo amend its application, considered the application as seeking registration of FL 2027 as an ‘extant variety’ and granted the registration. PepsiCo submitted that the error occurred because the form was not clear as to whether the date of the first sale in India or the date of the first sale in any other part of the world had to mentioned.

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

The court opined that the form was clear: under the heading “Has the candidate variety been commercialised or otherwise exploited”, immediately after a question relating to the “date of first sale of the variety”, the applicant is asked the “country(ies)where protection is made”. There was, therefore, no occasion for PepsiCo to misconstrue said provision in the form as seeking the date of the first sale in India only.

This was crucial as Rule 22(2A) of the PPVFRA provides that the registration as an ‘extant variety’ shall not be granted if, on the date of the application, 15 years have passed since 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 PepsiCo had provided an incorrect first date of commercialisation of the variety (17 December 2009), as it was already commercialised in 2002 in Chile.

The court stated that the registrar, following the initial application filed by PepsiCo, had raised queries and granted an opportunity to PepsiCo to rectify the mistakes/deficiencies. PepsiCo had filed an amended application, but again with the deficiencies. Therefore, despite the opportunity granted to PepsiCo, the application did not conform with the act, the rules and the regulations.

Concerning the incorrect date of commercialisation of the variety given by PepsiCo, the court observed that the onus of providing correct information in an application is on the applicant, and the applicant cannot shift this onus on the authority.