SC upholds PepsiCo’s potato variety registration, says sued farmers can invoke statutory protection
The Supreme Court upheld the registration of PepsiCo India's FL 2027 (also called FC5) potato variety, used in Lay's chips, under the Protection of Plant Varieties and Farmers' Rights (PPVFR) Act, 2001
The Court declined to revoke the registration merely because the company had earlier filed infringement suits against farmers, but clarified that individual farmers sued for using the variety can still invoke statutory protection under Section 39(1)(iv) of the PPVFR Act
The case traces back to 2018–19, when at least nine farmers in Gujarat were sued for alleged unauthorised cultivation of the variety, with damages exceeding ₹1 crore sought from each; the suits were withdrawn unconditionally in 2019
The registration itself had been revoked by the PPVFR Authority in 2021 following a petition by an activist, but a Delhi High Court Division Bench set aside that revocation in January 2024 — a decision the Supreme Court has now effectively affirmed
Protection of Plant Varieties and Farmers' Rights (PPVFR) Act, 2001
The PPVFR Act, 2001 is India's sui generis legislation for plant variety protection, enacted to comply with obligations under the WTO's TRIPS Agreement (which requires member states to protect plant varieties either by patents, an effective sui generis system, or a combination). Unlike a plant patent regime, the Act uniquely balances breeders' rights with statutory rights for farmers, recognising farmers simultaneously as cultivators, breeders, and conservers of genetic resources.
Key Details
- Administered by the Protection of Plant Varieties and Farmers' Rights Authority (PPVFRA), a statutory body under the Ministry of Agriculture and Farmers Welfare, established in November 2005
- Registration requires a variety to pass the DUS test — Distinctiveness, Uniformity, and Stability
- Breeders registered under the Act get exclusive rights to produce, sell, market, distribute, import, or export the protected variety
- India is one of the few countries to have a dedicated farmers' rights chapter within its plant variety law, distinct from the UPOV (International Union for the Protection of New Varieties of Plants) Convention model that most other countries follow
The PepsiCo case is the most prominent test of how India's farmer-inclusive PPVFR framework functions in practice, particularly the tension between a company's breeder rights over a registered variety and a farmer's statutory entitlement to use farm-saved seed.
Section 39(1) — The "Farmers' Privilege" Provision
Section 39(1)(iv) of the PPVFR Act entitles a farmer to save, use, sow, re-sow, exchange, share, or sell farm produce — including seed — of a registered variety in the same manner as before the Act came into force, with one restriction: farmers cannot sell seed of a protected variety under a brand name. This provision is often described as the "farmers' privilege" and is the key statutory shield that distinguishes India's regime from a conventional breeders'-rights-only patent system.
Key Details
- The privilege applies regardless of whether the farmer knew the variety was registered, so long as the seed is not sold as "branded seed"
- It reflects the Act's recognition of traditional Indian farming practice, where seed exchange and re-sowing are customary
- The provision was central to the farmers' defence when PepsiCo filed infringement suits against Gujarat cultivators in 2018–19
The Supreme Court's clarification that sued farmers can invoke Section 39(1)(iv) reaffirms that a breeder's registration and a farmer's privilege operate as parallel, coexisting rights under the Act — registration alone does not extinguish the farmer's statutory defence, but the Court held this defence must be raised in the specific infringement proceeding rather than used as a ground to revoke the registration itself.
Revocation of Registration under the PPVFR Act
The Act allows the PPVFR Authority to revoke a registered variety's protection on specified statutory grounds, such as the registration being contrary to the Act's provisions or obtained by furnishing incorrect information — but revocation is distinct from, and not automatically triggered by, a breeder pursuing infringement litigation against farmers.
Key Details
- The PPVFR Authority revoked PepsiCo's registration in December 2021 following a petition by an activist arguing the infringement suits against farmers were themselves grounds for revocation
- A Delhi High Court single judge upheld the revocation in 2023, but a Division Bench reversed this in January 2024
- The Supreme Court's 2026 ruling affirms that litigation against farmers, by itself, is not a valid statutory ground for revoking a breeder's registration
The ruling settles the specific legal question of whether infringement suits against farmers can be used as a revocation trigger — the Court held they cannot, while preserving the farmer's separate right to defend such suits under Section 39(1)(iv).
- PPVFR Act enacted: 2001; PPVFR Authority established: November 2005
- FL 2027 (FC5) potato variety commercially introduced: 2009; registered under the PPVFR Act: 2016
- Number of Gujarat farmers sued by PepsiCo: at least nine, between 2018 and 2019
- Damages sought per farmer: over ₹1 crore; suits withdrawn unconditionally: May 2019
- PPVFR Authority revoked registration: December 3, 2021; renewal rejected: February 11, 2022
- Delhi High Court Division Bench restored the registration: January 2024