Refusing to interfere in the intellectual property dispute over PepsiCo India’s registration of the FL 2027 (FC-5), the Supreme Court has held that the filing of suits by a registered variety holder for protection of statutory rights conferred under the Act cannot, per se, be treated as intimidatory, vexatious, or predatory, so as to attract the revocation ground under Section 34(h) of the Act. The Apex Court also clarified that any individual farmer who claims protection under Section 39(1)(iv) of the Act would be entitled to do so in any proceeding initiated by the first respondent and prove that they come within its cover.
A Two-Judge Bench comprising Justice J. B. Pardiwala and Justice K. Vinod Chandran observed that the controversy surviving for consideration was very narrow and centred on the application of Section 39(1)(iv) of the Protection of Plant Varieties and Farmers’ Rights Act, 2001, which provides that a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under the Act, in the same manner as he was entitled before the coming into force of the Act, with the proviso that the farmer shall not be entitled to sell branded seed of a variety protected under the Act.
The Supreme Court noted that the petitioner’s argument that the High Court had not dealt with Section 39(1)(iv) was unfounded, as the impugned order showed that the High Court had in fact dealt with Section 39(1)(iv) as well as the allegation of public interest leading to revocation under Section 34(h) of the Act.
The High Court had clearly found that the allegation of public interest was raised merely with reference to various suits filed by the first respondent alleging infringement against individual farmers. The High Court rightly found that there was nothing to establish that these suits were vexatious or that they had been instituted as a predatory tactic by the first respondent. The Supreme Court agreed with the High Court’s reasoning that the filing of suits for protection of rights conferred under the statute cannot, per se, be held to be intimidatory or vexatious. Section 34(h) of the Act was therefore not attracted. The High Court further held that if there was any allegation of a vexatious suit, the same would have to be raised and proved at the appropriate stage before the appropriate forum. The Supreme Court found absolutely no reason to interfere with this finding.
Briefly, PepsiCo India Holdings Pvt Ltd. (the first respondent) applied for registration under the Protection of Plant Varieties and Farmers’ Rights Act, 2001, describing FL 2027 as a new variety seed, with the date of first commercial sale indicated as Dec 17, 2009. The registration was based on an Assignment Deed dated Sep 26, 2003, by which the original breeder assigned rights to a company in the United States of America, which is an affiliate of the first respondent.
The petitioner, Kavitha Kuruganti, canvassing the rights of individual farmers, approached the authority for revocation of the registration under Section 34 of the 2001 Act. The revocation order that was passed was challenged by the first respondent before the High Court in an appeal as provided under the Act. The Single Judge held in favour of the first respondent on certain aspects and sustained the revocation order on other aspects.
