Potato Exclusive for Chips?
PepsiCo India Holdings Pvt. Ltd., Appellants
Kavitha Kuruganthi Respondents
C.A. (COMM.IPD-PV) 2/2022 &IAs 7898/2022 & 7900/2022
Appeal preferred under Sec. 56 of the ‘Protection of the Plant Varieties and Farmers’ Rights Act, 2001’ [hereinafter referred to as the ‘Act’] challenging the order [hereinafter referred to as the ‘Impugned Order’] passed by the ‘Protection of Plant Varieties and Farmers Rights Authority’ [hereinafter referred to as the ‘Authority’]
The Appellants developed a specific potato variety called FC-5 [hereinafter referred to as FC-5] which is supposedly ideal for making potato chips but is unsuitable for regular household use.
The appellants claim FC-5 was developed in USA by a former employee of a division company of their parent company, after extensive research and expenses.
The Appellant applied for registration of FC-5 before the Patent Office, who sought clarifications and the same were provided. In the revised application, the ‘variety’ was categorized as 'New Variety’ and provided the commercialization date, however ‘FC-5’ was registered under 'extant variety,' and the Appellants did not oppose.
The Respondent filed an Application u/s 34 of the Act before the Authority, seeking revocation of the registration granted in favour of the Appellants.
ISSUES BEFORE THE COURT
Was the Certificate of registration obtained by furnishing incorrect information? Was the revocation of the registration on the grounds that the application had been made under ‘New Variety’ ,arbitrary and harsh?
Was the application filed before the Registrar, deficient and fail to provide necessary orders?
Was the Appellant eligible for protection under the ‘Act’ ?
Can the filing of litigation against some potato farmers and claiming exorbitant and arbitrary sums of money as damages, be construed as an act, not being in public interest ?
Does the Respondent have any locus to file the revocation Application?
DECISION OF THE COURT
There is no dispute that the FC-5 is an ‘extant variety, potato and not ‘new variety’
The Appellants have obtained the Certificate of Registration by furnishing incorrect information.
The appellant has failed to prove that it was eligible for protection under the Act
In spite of the opportunity granted, the revised application was not in conformity with the Acts, Rules and Regulations of the Act
Sec 20 (2) of the Act provides that if the Registrar is not satisfied with the Application, he can require the Application to be amended to his satisfaction or he may reject the same, provided he has given the applicant a reasonable opportunity of presenting their case.
The Registrar raised queries on the initial application and granted opportunity to rectify the deficiencies, however the amended application had deficiencies as well.
Though the Registrar granted Registration to the Appellant, the fact remains that the Application was not in conformation of the Act, Rules and Regulations.
THE FINDINGS OF THE HON’BLE DELHI HIGH COURT
Sec 21 of the Act states where an application has been accepted by the Registrar, he shall advertise the same, calling for objections from ’interested persons’ . Sec 21  states that any person may file such objections/oppositions and Sec 21 provides that opposition may be made inter alia on the ground that the grant of registration may not be in public interest
According to Sec 34, one of the grounds for revocation is that the grant is not in public interest. Any ‘interested person’ would include in its scope and ambit, a ‘public spirited person’ who files for revocation of the registration in public interest .
The Appeal was dismissed and the order revoking the grant of the Registration was upheld
The Ld. Judge of the Hon’ble Delhi High Court interpreted that “any person” and “any interested person” mentioned in Sec 21 of the Act has been used interchangeably
Rule 52 of the Act states
“Any person may make an application to the Authority in Form PV-15 of the First Schedule, for revocation of protection granted to a breeder in respect of a variety on any of the grounds laid down under clauses (a) to (h) of section 34 “
The Ld. Judge has included a public spirited person in the scope and ambit of “any interested person” mentioned in Sec 21 of the Act.
This could be taken as a blanket permission to oppose and revoke Registrations filed by genuine researchers, by litigation happy, money grabbers. However, the Act is still fleshing out and will go through some more amendments. Meanwhile it could trigger a deluge of litigation against Registrations already granted.