Agricultural businesses do not traditionally rely on innovation and rather depend on sharing of knowledge and resources. Yet, the last three to four decades have witnessed some key advancements in agriculture such as genetic modification for plant varieties, insecticides that are very specifically catered to only work on certain types of pests while still preserving the rest of the ecosystem. Since 2007 and up until November 30, 2021, a total of 17629 applications were received for registration of various seeds[2] and plant varieties under the Protection of Plant Varieties and Farmers’ Rights Act of 2001. This indicates the increasing importance of IPR in fostering agricultural innovation and sustainability.
Emerging Technologies: Hope for Sustainable Agriculture
Sustainable agriculture in today’s day and age is embracing a wave of innovative technologies that contribute to a more viable approach to agriculture. These advancements target specific goals like minimizing waste, conserving precious water resources, and nurturing healthy soil conditions. Precision agriculture, which leverages data and automation to optimize resource utilization, is leading the charge. Sensors keep a watchful eye on soil health, allowing for targeted application of fertilizers and water, thereby minimizing unnecessary over-spray and runoff. Drones equipped with sophisticated imaging technology can map variations across fields, enabling farmers to tailor their interventions to specific needs. [3] Robotics assist in tasks like weeding and harvesting, reducing reliance on fossil fuels and human labour.
But technology extends beyond the field. Biofertilizers and biopesticides derived from natural sources offer alternatives to harmful synthetic chemicals. Advanced water treatment systems purify wastewater for irrigation, while vertical farming maximizes yields in urban environments. These innovations, though diverse, share a common thread: their potential to revolutionize agriculture while safeguarding our planet.
IPR Innovation: Hand in Glove in Agriculture Sector
Agriculture has made remarkable progress in recent decades, including transferring beneficial traits to many crops that would otherwise be at risk of extinction due to disease, drought and pests. With resistant seed varieties, plants can achieve higher yields and at the same time require fewer chemical fertilizers. This is particularly useful for farmers in developing countries like India. Harnessing this part of agricultural innovation can make a significant contribution to reducing poverty, malnutrition, food security and disease control.
Innovation in the agricultural sector such as in the case of developing stable seeds primarily involves five stages, discovery, proof of concept, early development, advanced development and pre-launch. [4] Farmers, researchers, private companies, consultants, non-governmental organizations (NGOs), consumers and many others are involved in leading, supporting, creating, transferring or introducing agricultural innovations and in advising and informing farmers and the public about their innovations. This is despite the numerous budget challenges that the government faces when it comes to funding research and development of such projects.
Part of recognizing the multifaceted benefits of utilizing good IPR practices in agriculture is that the products in which innovations are made do not just operate on a superficial level. These innovations are literally ‘ingrained’. It directly helps develop more nutritious, healthier and more secure food through innovation in things such as enhanced seed production by genetically modifying them.
Invaluable Patent Laws
Among all the IP laws, strict enforcement of the patent laws is the most essential element to protect agricultural rights in our country. Further, breeding new plant varieties, no doubt benefits society but is a very time-consuming process that requires an investment of intellect and monetary expenses, hence making it crucial to provide incentives to encourage it. Effective patent laws serve a two-fold purpose, they protect the rights of people who create new processes, and since their disclosure is mandatory, they also encourage further research and development in the sector.
Patent laws are invaluable in the biotechnology sector, especially in the US, Europe and Japan, however, there is a need to expand the scope of the technical knowledge and its utility across other parts of the world. In addition, laws and procedures in this sector see major variation across jurisdictions. For example, in the US, patents are granted for animal inventions and human gene sequences alike if eligible. [5] The European Parliament and the Council in 1998 also passed the biotechnology and genetic engineering directive [6] that allowed for legal protection of biotechnological inventions to boost research and investment in the field, subject to a few sociological exceptions. Some of the things for which patents would not be allowed under this directive included plant and animal varieties and biological processes for production of animals or plants. [7]
Ripples of advanced research and development can be felt widely across the field of agriculture today. Very recently, the Singapore Centre for Environmental Life and Sciences Engineering (SCELSE) and the National University of Singapore have discovered new microbials that can enhance the effectiveness of the interaction between crops and microbes, which directly helps increase the yield of the affected crops. It is slated that this research will help boost plant growth by 30%. [8]
Rampant Rise in Biopiracy
It is imperative to note that appropriate enforcement of IPR is essential to bolstering the growth of the sustainable agriculture concept. This is because while on one hand there is the concept of ‘Bioprospecting’, which relies on discovering new processes and biological resources for use, on the other there is ‘Biopiracy’ i.e., unauthorized appropriation of biological resources and traditional knowledge for commercial gain. Hence the need to balance this development with preventing their exploitation, which casts a long shadow over the enforcement of IPR in the agriculture space. Indigenous communities that have vast accumulated knowledge and a rich biodiversity often get exploited by big corporations, who then develop new cosmetics, pharma products and new agricultural products, claiming the traditional knowledge as a new intellectual property they own.
Addressing biopiracy necessitates a paradigm shift. Strengthening community rights over their knowledge through sui generis systems, like biocultural protocols, empowers them to control access and enable benefit-sharing. Recognizing and adapting customary laws within IPR frameworks acknowledges the validity of traditional knowledge systems. Finally, promoting transparency and prior disclosure databases helps prevent biopiracy and ensures greater equity in patent granting. Only by addressing these challenges can IPR truly become a tool for fostering innovation and protecting the rights of all knowledge holders, be it multinational corporations or indigenous communities safeguarding their ancestral wisdom.
IPR Protection for Agricultural Innovation in India
As of 2023, India has experienced a significant rise in applications for the registration of new plant varieties, reflecting a growing recognition of IPR in agriculture. Recent statistics show that thousands of applications have been submitted under the Protection of Plant Varieties and Farmers’ Rights Act of 2001, signalling the increasing importance of IPR in fostering agricultural innovation and sustainability.
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement that was brought into effect in 1995 by the WTO was the first international attempt to introduce intellectual property law as part of an essential legal sanction for trade across countries and set down the minimum standards that should be laid down and regulated by members of different nations. After joining the World Trade Organization (WTO), countries agreed to protect new plant varieties and opted for one of these two ways to achieve it:
- Patents: As with inventions, companies can get exclusive rights to sell seeds of new plant varieties.
- Special laws: Each country can create its own rules for protecting plants.
India chose the latter path and passed the Protection of Plant Varieties and Farmers’ Rights Act in 2001 and its subsequent rules in 2003. [9] By setting global standards for IPR protection, the TRIPS agreement has played a pivotal role in shaping these developments, further aligning innovation with sustainability.
Overview of the 2001 Act
The Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act, 2001, was established to create an effective system for safeguarding the rights of both plant breeders and farmers. The Act aims to:
- Encourage the development of new plant varieties.
- Recognize and protect farmers’ contributions to conserving and improving plant genetic resources.
- Provide a framework for registering new plant varieties based on distinctiveness, uniformity, and stability.
The recognition of farmers’ rights is crucial for acknowledging farmers’ contributions to conserving, improving, and providing access to plant genetic resources necessary for developing new varieties. Additionally, protecting the rights of plant breeders is vital to stimulate investment in research and development, ultimately accelerating agricultural advancement. Such protections are expected to foster the growth of the seed industry, ensuring that farmers have access to high-quality seeds and planting materials. As India ratified the TRIPS agreement, it was imperative to implement provisions that aligned with this agreement. In pursuit of these objectives, the 2001 Act was enacted and an authority was established that was responsible for overseeing the registration process and ensuring compliance with its provisions. The Act outlines specific rights for farmers, including the right to save, use, exchange, and sell farm produce. [10]
Implications of PepsiCo’s FC5 Potato Variety Case on the PPVFR Act in India
On January 9, 2024, the Delhi High Court reinstated PepsiCo’s patent for its FC5 potato variety, marking the end of a lengthy legal battle. Initially, the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Authority revoked the patent in 2021, citing that Indian law didn’t allow the patenting of seed varieties. However, PepsiCo successfully appealed this decision.
Facts
PepsiCo introduced its FC5 potato variety in India back in 2009, specifically for use in Lay’s chips due to its low moisture content. The company registered this variety under the PPVFR Act in 2016 for a period of 15 years, granting it exclusive rights for cultivation and sale. The company supplies the FC5 seed variety to farmers in India, who then sell the produce to PepsiCo at an agreed-upon price.
In April 2019, PepsiCo took legal action against nine farmers from Gujarat who were allegedly growing and selling the FC5 potato variety without being part of its contract farming program and demanded Rs. 1 crore as penalty from each of the individual farmers. This lawsuit sparked public outrage, with many who looked at it as an attempt to intimidate small farmers. Following intervention from the Gujarat government, PepsiCo ultimately withdrew the lawsuits.
In June 2019, activist Karuna Kuruganti challenged PepsiCo’s registration of the FC5 potato variety. She argued that the registration violated farmers’ rights under the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act and highlighted procedural irregularities, including a lack of proper documentation. In 2021, the PPVFR authority agreed, revoking the intellectual property protection for the FC5 potato variety, citing that Indian regulations do not permit the patenting of seed varieties.
PepsiCo subsequently challenged the revocation of its Plant Variety Protection (PVP) Certificate in the Delhi High Court. However, on July 5, 2023, the Single Bench of the court dismissed PepsiCo’s appeal. The company appealed before the Division Bench of the High Court in order to seek a reversal of the order dated July 5, 2023.
Issues
The main issue in this case was whether PepsiCo’s registration of the FC5 potato variety under India’s Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPVFR Act) should be revoked. The case pitted PepsiCo’s intellectual property claim to the FC5 potato variety against the rights of Indian farmers. The question centers on whether PepsiCo’s registration followed the necessary procedural requirements and whether it infringed on farmers’ rights to save, use, and sell seeds of even protected varieties, as granted by the PPVFR Act.
Rules
The PPVFR Act protects plant breeders while safeguarding farmers’ rights. Under Section 39, farmers are entitled to save, use, sow, and sell their farm produce, including seeds of protected varieties. Section 34 allows for the revocation of a plant variety registration if it was granted based on incorrect or incomplete information. Additionally, all assignments or transfers of rights must be properly documented to remain valid under the Act.
Analysis
The activist Ms. Kavitha Kurungati contended that PepsiCo’s registration was based on incomplete documentation, specifically lacking written proof of an assignment from Frito-Lay, the original developer, to PepsiCo India. She submitted that the required documents were not submitted to the registrar during the registration process. While Hoopes was listed as the breeder of the variety, the application was filed by Recot Inc., which was later changed to Frito-Lay North America (FLNA). However, only an unstamped assignment deed between Hoopes and FLNA was provided, with no assignment deed submitted to establish the transfer of rights from FLNA to PepsiCo India Holdings Private Limited. PepsiCo cited an “oral assignment” to justify its registration stating that FLNA assigned the IP to them orally, but this fell short of the PPVFR Act’s documentation requirements.
The activist also argued that PepsiCo had violated the 2001 law by filing lawsuits against farmers. Under Section 39(1)(iv) of the PPVFR Act, farmers have the right to save, use, sow, resow, exchange, share, or sell their farm produce, including seeds of a protected variety, in the same way they were entitled to before the Act came into effect. Hence the rights of the farmers supersede the rights of the breeder which was PepsiCo in the present case.
Judgement by the Court and its implications
On January 9, 2024, the Division Bench of the Delhi High Court reversed this decision, allowing PepsiCo’s appeal and overturning the July 2023 ruling. The Division Bench found that “neither the application nor the ultimate grant suffered from a fundamental misdeclaration or a failure to provide information as required by the provisions of the act, read along with the rules” and subsequently held that a plant variety registration could not be revoked based on procedural issues, such as errors in the application process; rather, revocation could only occur if substantive issues regarding the validity or eligibility of the registration were found. It found that PepsiCo had accurately informed the registrar of seeking registration under the “extant” category, and that FLNA had authorized PepsiCo to file the application, as clarified in a letter from FLNA in September 2019. Consequently, the Division Bench set aside the PPVFR Authority’s order, reinstating PepsiCo’s PVP Certificate.
The judgement underscores the delicate balance that must be maintained between IP enforcement that is relevant for foreign investment in the agrarian sector of India vis a vis the rights of the agricultural farmers themselves. PepsiCo is not the only U.S. company to have faced patent infringement issues in India. Following a prolonged intellectual property dispute, seed maker Monsanto, now owned by German drugmaker Bayer AG, exited certain business operations in India.[11]
Conclusion
In conclusion, the symbiotic relationship between sustainable agriculture and intellectual property (IP) emerges as a crucial driver for global food security and environmental resilience. As technological advancements revolutionize farming practices, the role of robust IP frameworks, including patents, trademarks, and plant breeder’s rights, becomes indispensable. These frameworks not only protect innovations but also incentivize research and development, fostering breakthroughs in seed production, disease resistance, and resource optimization. However, the shadow of biopiracy looms large, underscoring the need for a paradigm shift towards community empowerment, adaptation of customary laws, and enhanced transparency. Only through addressing these challenges can IP truly become a catalyst for equitable innovation in agricultur’