Delhi HC sets aside single judge order revoking PepsiCo’s potato patent

The Delhi High Court has set aside a single judge’s order revoking PepsiCo India’s patent registration in respect of a potato variety used for making chips.

A division bench headed by Justice Yashwant Varma on Tuesday allowed the food and beverages giant’s appeal challenging the order of a single judge of the high court and restored its renewal application on the file of the registrar concerned.

The court directed that the application be decided in accordance with the law and the present order, and dismissed the cross appeal against the order by farm rights activist Kavitha Kuruganti.

“The appeal of PepsiCo, LPA 590/2023 is allowed. The impugned judgment and order dated 5 July 2023 shall consequently stand set aside to the extent indicated above. We consequently also set aside the (revocation) order of the Authority (constituted under Protection of Plant Varieties and Farmers’ Rights Act) dated 3 December 2021 and the letter issued by the Authority dated 11 February 2022 (rejecting the renewal application),” the bench, also comprising Justice Dharmesh Sharma, said.

“The renewal application as made by PepsiCo shall stand restored on the file of the Registrar who shall dispose of the same in accordance with law and in light of the findings recorded hereinabove,” ordered the court.

The single judge had affirmed the revocation of PepsiCo’s patent on various grounds including that it furnished incorrect information relating to the date of first commercial sale as well as a purported failure on its part to proffer and present requisite documentation at the time of applying for registration.

The court stated that the power of revocation under the Act was liable to be invoked only in situations where a certificate of registration was found to be inconsistent with the protection accorded by the law or where a plant variety which was otherwise ineligible to be accorded protection was conferred registration.

“We find ourselves 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,” the court stated.

Kuruganti argued that the initiation of revocation proceedings was necessitated in order to safeguard the legitimate entitlement of farmers when PepsiCo sued farmers in Gujarat citing intellectual property right infringement.

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It was contended that the institution of “those vexatious proceedings” to intimidate farmers amounted to PepsiCo acting contrary to public interest and thus warranting the revocation.

The court, however, observed that besides a mere reference to various suits by PepsiCo, Kuruganti failed to establish or prove that those suits were vexatious or that they had been instituted as part of predatory tactics.

“Material has neither been placed on the record nor has the respondent-appellant drawn our attention to any material placed before the learned Single Judge which may have lent credence to this allegation. Even the Authority, while passing the order of revocation has merely referred to the filing of those suits and the fact that they were ultimately withdrawn,” the court said.

“In our considered opinion, the aforesaid conclusions are not based on any tangible facts relating to the merits underlying those suits nor are they based on the Authority having upon an independent examination of the plaint and the allegations levelled therein having found that the actions were intimidatory and vexatious,” it stated.

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