Delhi HC permits PepsiCo to claim patent for potato chips variety

The Delhi High Court on Tuesday ruled that PepsiCo can claim a patent for the potato variety grown for its potato chips. The division bench thus set aside the single judge order of July 5 last year dismissing Pepsi’s appeal against an order that revoked the company’s patent-protected potato variety used for making chips.

Pepsi had filed an appeal under the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (the Act) challenging the December 3, 2021, order of the Protection of Plant Varieties and Farmers Rights Authority (the Authority) in the Delhi High Court. A single judge had then on July 5 dismissed this appeal. After this, Pepsi filed an appeal before the division bench of the same court.

The appeal of PepsiCo is allowed. The judgment consequently also set aside the order of the Authority dated December 3, 2021, and the letter issued by the Authority dated February 11, 2022. The renewal application as made by PepsiCo shall stand restored on the file of the Registrar, who shall dispose of the same by law.

The Authority order had revoked Pepsi’s registration with respect to the plant variety- FL 2027 potato variety, on three grounds (Section 34(a), (b), (c), and (h)) of the Act. Pepsi’s application for renewal of its registration was also rejected. The revocation order, passed in December 2021, took away Pepsi’s Plant Variety Protection certificate on the potato variety.

The court on Tuesday dismissed the arguments of farmers' rights activist Kavitha Kuruganti, saying that the appeal of PepsiCo is allowed.

They however find theirselves unable to uphold the view taken by the learned Single Judge insofar as it holds against PepsiCo and pertaining to an incorrect mentioning of the date of first sale as well as the conclusions ultimately rendered in the context of the eligibility of PepsiCo to apply for registration and non-submission of relevant documentation.

Kuruganti had said that PepsiCo was acting contrary to the public interest by filing suits against the farmers. The court dismissed this and said, "Apart from a mere reference to various suits alleging infringement, which are stated to have been filed by PepsiCo, the respondent failed to establish or prove that those suits were vexatious or that they had been instituted as part of predatory tactics of PepsiCo."

Plant variety protection provides legal protection of a plant variety to a breeder in the form of plant breeder's rights (PBRs). PBRs are IPRs that provide exclusive rights to a breeder of the registered variety.

PepsiCo Inc (appellant) is engaged in manufacturing, distribution, and sale of non-alcoholic beverages such as Pepsi, Mirinda, and 7UP. It also makes and sells salted snacks and foods such as Lay’s and Uncle Chipps.

The beverage company claimed that FL 2027 is a chipping potato variety with low external defects. It has high dry matter/high solids content and stable sugars, all of which make it highly suitable for the manufacture of chips.

"Because of these qualities, however, it requires more time and energy in the cooking process, making it unsuitable for use as a table potato or for everyday cooking in households. The appellant uses it for the manufacture of potato chips under the Lay’s brand," Pepsi had said.