The Protection of Plant Varieties and Farmers’ Rights Act, 2001 (hereafter referred to as “the Act”) provides an effective system for the protection of varieties, the rights of breeders and farmers, and encourages the development of new varieties. The registration of a variety under the Act confers an exclusive right on the breeder to produce, sell, market, distribute, import, or export the variety under Section 28 of the Act.
The effect of the grant of registration under the Act is ‘quid pro qua’ i.e., the monopoly granted to an applicant for the term of registration must accompany the knowledge disclosed to the public. It means that the holder of plant variety registration would secure financial gain in return on investment made in R&D activities during the life of registration of variety. However, in return, the applicant needs to fully disclose the developments claimed in the variety developed so that the protected variety could be produced by any person after the expiry of registration i.e., when the variety comes into the public domain.
Where the applicant fails to comply with such requirements, the variety, even if registered, is liable to be revoked under Section 34 of the Act. The judgment dated July 05, 2023, of Delhi High Court, in PepsiCo India Holdings Pvt. Ltd. Vs Kavitha Kuruganti addresses the crucial issue of the validity of the Authority’s decision in revoking the registration granted to the appellant by invoking the grounds mentioned in Section 34 (a), (b), (c) and (h) of the Act.
Background of the Case
The appellant had applied for registration of a chipping potato variety of denomination FL 2027 on February 18, 2011, under the ‘new’ category at the Plant Variety Authority under the Act. The Registrar, after substantive examination of the application, raised certain queries including that based on the date of commercialization, the variety falls under the ‘extant’ category rather than the ‘new’ category.
The appellant filed the revised application; however, due to a bona fide mistake ticked the box in the form depicting FL 2027 as a ‘new variety’, with the date of commercialisation as 17.12.2009 in India. The Registrar granted registration to FL 2027 on 01.02.2016, treating it as an ‘extant variety’. Though no opposition was received to the application within the prescribed under section 21(2) of the Act after publication of the application; however, the respondent had filed an application under Section 34 of the Act before the Authority for revocation of registration granted in favour of the appellant.
The Authority allowed the application and passed the impugned order revoking the registration of FL 2027 under Section 34(a), (b), (c), and (h) of the Act. Due to revocation of registration, the appellant’s application for renewal of registration was also rejected vide Authority letter dated 11.02.2022. Being aggrieved by the Authority’s decision, the appellant filed the present appeal under section 56 of the Act challenging the impugned order and the letter.
At the outset, the appellant argued that by re-evaluating the facts pertaining to the appellant’s application for registration of the FL 2027 potato variety, the Authority exceeded its jurisdiction vested under Section 34 of the Act and as the registration is based on Registrar’s best judgement, the Authority cannot substitute the same.
Appellant’s Argument under Section 34(a)
Section 34(a) of the Act states that the grant of a certificate of registration based on incorrect information furnished by the applicant is liable to be revoked by the Authority. In the present case, the appellant argued that the Authority had erred in finding that the appellant had furnished incorrect information regarding the category in which the registration was sought. The appellant submitted that in response to queries raised by the Registrar, the appellant had filed the revised application changing the category to ‘extant’ however due to an inadvertent bona fide mistake, ticked the box next to ‘new variety’ in the application form.
However, said inadvertent error in the application category had no impact on the registration as the Registrar had granted registration treating the FL 2027 as an ‘extant variety’. Further, the appellant argued that the impugned order wrongly considered the deficiencies in the application pertaining to a bona fide mistake on the date of first sale mentioned as 17.12.2009 in the application and the proof submitted in support was an invoice dated 18.12.2009, as a ground to revoke the registration granted to the appellant. The appellant submitted that such a mistake was inadvertent having no impact on the registration.
Respondent’s Argument under Section 34(a)
The respondent argued that the impugned order suffers from no infirmity. The appellant had deliberately ticked the box against ‘new variety’ in place of ‘extant variety’. Also, the respondent argued that as per records, the first date of sale of FL 2027 was 2002 in Chile, hence, after 2017 i.e., after the expiry of fifteen years from the date of first sale, the variety is now in the public domain. Therefore, the appellant would also not be eligible for renewal of registration. Therefore, section 34 (a) is rightly invoked by the Authority.
Appellant’s Argument under Section 34 (b) and (c)
According to Section 34(b) of the Act, the certificate of registration granted to a person who is not eligible for protection under this Act is liable to be revoked by the Authority. Section 34(c) states that the breeder did not provide the Registrar with such information, documents, or materials as required for registration under this Act. In the present case, the appellant argued that the impugned order wrongly declared the assignment deed as invalid, unstamped, and unwitnessed hence, revoked under Section 34 (b) and (c) of the Act. The appellant argued that the assignment was executed in the USA where there is no requirement of stamping or registration. As the same was accepted by the Registrar and no objection regarding the same was raised, the registration granted cannot be revoked under Section 34 of the Act.
Respondent’s Argument under Section 34 (b) and (c)
The respondent argued that the appellant did not provide any documentary proof of the right in the appellant to make the application and there was no valid assignment of such right in its favour. Furthermore, the prescribed form for proof of right to make an application (PV-2) was not signed by the breeder of the candidate variety. Hence, section 34 (b) and (c) was rightly invoked by the Authority to revoke the registration granted in favour of the applicant.
Appellant’s Argument under Section 34(h)
According to Section 34(h) of the Act, if the Authority finds that the grant of certificate of registration is not in the public interest, it is liable to be revoked by the Authority. In the present case, the appellant argued that the authority erred in invoking Section 34(h) that the grant of certificate of registration is not in the public interest as the suit was filed against the defendants who claimed to be farmers but were not entitled to protection under Section 39(1)(iv). Also, the appellant had a valid registration certificate and there was no revocation application as of the date of filing of suits hence a post facto revocation in 2021 cannot deem the appellant’s acts regarding the enforcement of its rights in 2019 as against public interest.
Respondent’s Argument under Section 34(h)
The respondent argued that the appellant abused the registration by filing suits against some potato farmers in Gujarat, claiming exorbitant and arbitrary sums of money as damages. Such acts were intended to cause intimidation, harassment, and severe anxiety amongst the farmers. The registration was, therefore, rightly revoked under Section 34(h) of the Act.
Court’s Findings and Decision in the Subject Appeal
The Court considered the submission made by both the parties and held that though the appellant has nothing to gain by misrepresenting FL 2027 as a ‘new variety’ as against what it truly was, an ‘extant variety’ but the revised application filed, admittedly, had an error. The Registrar instead of calling upon the appellant to amend the application, proceeded to consider the application as if such amendment had been made. Therefore, the appellant could not have been held guilty of having obtained the registration by providing incorrect information and said mistake could not have provided ground to the Authority to revoke the registration under Section 34(a) of the Act.
Regarding the bona fide mistake of the appellant on the incorrect date of commercialisation of the variety, the court held that the date of the first sale of the variety is important and material information for the application and the applicant must provide correct information in the application, failing which it opens itself up to revocation of the registration granted under Section 34 (a) of the Act. In the present case, the appellant had filed the proof of right form (PV-2) in blank without the signature of the breeder or FLNA, the alleged assignee of the breeder.
Additionally, the breeder did not provide the Registrar with such documents as required for registration. The court held that it remains the fact that the application filed by the appellant contained deficiencies and the Authority, under Section 34 (b) and (c) of the Act, was justified in revoking the registration granted. Regarding Section 34 (h), the court held that mere filing of the litigations by the appellant against the farmers, even presuming the same to be completely frivolous, cannot be construed as satisfying the test of the grant of registration itself not being in the public interest. Therefore, the Authority had erred in revoking the registration granted under Section 34 (h). Given the above, the court found no merits in the appeal and the same is dismissed without cost.
The court’s decision emphasised that the application for registration of a variety should be filed strictly in conformity with the Act, the Rules, and the Regulations. The onus for providing the correct information in the application is on the applicant and the application if filed casually is liable to be revoked under Section 34 by the Authority, even if it is granted a certification of registration under the Act.
