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Fruits, vegetables and associated intellectual property rights
Tuesday, 21 September, 2021, 08 : 00 AM [IST]
Chirag Dighe
The year 2021 is declared as The International Year of Fruits and Vegetables (IYFV), by the United Nations (UN), General Assembly, to raise the awareness regarding nutritional health and benefits of fruits as well as vegetables.

Human civilization has come a long way in terms of growing fruits and vegetables. Humans tryst with fruits and vegetables began with consuming wild varieties. After observing how wild varieties grow, humans themselves started replicating this natural process with some modifications, called cultivation. The repeated cultivation caused mutations in the cultivated product, and it eventually became domesticated plant or vegetable.

From late 20th century, consumption of fruits and vegetables in the form of industrially refined produce is on exponential rise. As a result, there is a growing interest in Intellectual Property Protection of fruits, vegetables and the products derived from them.

What is Intellectual Property Rights (IPRs):
IPRs are exclusive rights assigned to the applicant, either natural persons or legal entities, for the original work, and prevent any other person or legal entity to commercially exploit the said rights without a proper authorisation of the assignee. The original work is a unique expression of ideas and human creativity that turn into a tangible work. It is important to note that the practical realization of the ideas, and not mere ideas, are entitled to be protected by way of IPRs.

Once granted, the grantee can enforce its IPR by excluding others from reproducing, manufacturing, selling without the grantee’s permission. Such permission include license, or transfer of ownership rights. But such monopoly rights are not perpetual. The grantee enjoys the monopoly for a certain time period, varying for each type of the IPR.

Can we protect Fruits and Vegetables by means of IPRs:
Cultivation is a brilliant combination of creativity and enterprise. With advent of time, different cultivation techniques, together with local geographic conditions, have given rise to different varieties of the same plant. It may be noted here that the different varieties occur due to genetic variation. Now that the IPRs demand the product involving novelty, essentially by human intervention, traditionally known varieties cannot be protected by IPRs. But a new variety, obtained with painstaking research in the fields or in the laboratories, is entitled to get IPR protection, under what is globally known as plant variety protection or plant breeder’s rights. In India, such protection is offered by the Protection of Plant Variety and Farmer’s Rights Act, 2001, abbreviated as PPVFR Act. Under this Act, the new plant variety can be registered if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.

The novelty is determined by examining whether the variety, for which the application of protection is filed, is sold before the date of filing. The distinctiveness of the variety is judged by examining whether the said variety is distinguishable by at least one essential characteristic from the varieties known or existing in any country.  The variety is said to be uniform if the essential characteristics are sufficiently consistent in the individual plants within the variety. The variety is said to be stable if its essential characteristics remain unchanged after repeated propagation.

Indian Council of Agricultural Research (ICAR), is one of the breeders having many varieties registered under PPVFR Act.

A recent case related to PPVFR had hit the headlines in 2019, which was curiously followed globally. An Indian arm of the American food and beverage giant PepsiCo sued a group of farmers from Gujarat, claiming that they had been sowing PepsiCo’s registered potato variety FL2027, and hence had infringed PepsiCo’s rights under PPVFR Act.

The PepsiCo, in it’s suit, demanded hefty compensation from each of the farmer. The FL2027 is sold under the trademark name FC5, and is exclusively cultivated for PepsiCo’s potato chips brand ‘Lays’. The FC5 has less water content compared to the other varieties. As a breeder of the registered variety under PPVFR Act, the PepsiCo has licensed thousands of farmers to cultivate FC5 variety. The cultivated and grown FC5 variety is bought back by the PepsiCo at a predetermined rate to produce ‘Lays’.

In this case, the experts were divided in their opinion. A section of the experts said that the PepsiCo was right in suing farmers, since its rights as a breeder as per PPVFR Act are acknowledged. The other section said that the infringement suit was ill-advised, since certain provisions of PPVFR Act (Section 39-1-iv) shield the farmers from such legal recourse against them.

These provisions allow the farmers to grow registered varieties as long as they do not sell the said variety under a brand name. These provisions are unlike the US, where no one can grow the patented variety, except the breeder itself.

Eventually, the PepsiCo withdrew their suit after the talks with Government. The conditions, under which the PepsiCo agreed to withdraw its cases, are not publicly known.

The case of Genetically Modified (GM) seed:
Modern food industry is obsessed with GM technology. A GM seed has its DNA modified by genetic engineering methods, wherein a new DNA is inserted into the plant cells. The cells are usually developed by tissue culture, which are thereafter grown into the plant. The seed produced by this plant has new DNA into it. The GM plant has enhanced resistance to certain diseases, pests or chemicals, due to which the yield increases. The new DNA can be borrowed from any organism. For example, Bt cotton, a laboratory grown GM plant, contains soil bacteria Bacillus thuringiensis that enhances its resistance against the larvae of cotton bollworms, flies, moths but is not harmful for any other organism.

It is debatable whether such GM seed can be protected under patent laws or can be acknowledged as a new plant variety. GM seed can be patented in the US, whereas current provisions in The Patents Act, 1970 in India does not allow GM seeds to be patented. To introduce briefly, any invention can be patented under the Act if it satisfies the criteria of novelty, inventive step and industrial applicability. S. 3(j) of The Patents Act prohibits patenting of ‘plants and animals in whole or any parts including DNA, cells, seeds, varieties and species'.

However, the modified genetic sequence, obtained in the laboratory, and the gene expression can be patented in India. The final product is the seed, with the modified gene, which is sold in the market. The patentee can claim its exclusive rights over this seed.

The debate regarding the protection for GM seed can be best illustrated with the Monsato case, regarding patentability of Bt cotton. In this case, the Supreme Court allowed Monsato to file the patent claims, setting aside the order passed by the Delhi High Court. But while passing this order, the Supreme Court directed the High Court to examine the patentability of the claims filed by the Monsato.

Bt cotton is the only genetically modified seed allowed to be sown in India. Currently, there is a raging debate amongst experts and farmers whether the permission to sow the GM seed for soybean, brinjal, maize, should be given to the farmers.

Protection for products made out of fruits/vegetables, processes and its related technologies:
The inventions related to the products related to fruits or vegetables include the composition or ingredients of the product, the process by which the product is made, or the machinery used for the process.  

The experts suggest that the process patent, related to food product, have greater chance of patent grant than the food products. One of the main provision that may obstruct the food product is S. 3(e), which says that a substance obtained by mere admixture resulting only in the aggregation of the properties of the components; and a process to obtain such product will not be considered as invention.

However, the technology to make the products or to carry out the process can be protected by way of patents. Such technology includes devices, apparatus, machinery or system, which must satisfy the criteria of novelty, inventive step and industrial applicability.

The applicant seeking patent protection for its invention is required to submit a complete disclosure of invention and its enablement. In case of the process to make the product, the various parameters involved in the process are usually required to be disclosed in the specification. For a competitor, it is possible to work around the patented process to arrive at the same product for which the process is patented. As a result, the competitor may be able to successfully defend itself during an infringement action by the patentee. For this reason, most of the companies choose to protect the process by trade secret instead of patent.

Protection for undisclosed confidential information:
As discussed above, the invention for which the patent protection is sought is required to be disclosed fully. The submitted patent specifications are published in the official journal. Therefore, certain details of the invention are automatically brought into public domain.

But there is a certain kind of information that has commercial value, which gives competitive edge to the producer of the goods. Such information can be of technical nature - process of production of fruit juice or commercial nature or combination of these two. Many countries have legislative provision to protect the confidential information as a trade secret and, according to the legislative provision, obtaining this information by unfair means will likely attract legal action by the producer. The “unfair means” include espionage, breach of contract or confidentiality agreement.

In India, there is no specific law to protect the confidential information. But, the courts in India have upheld the right to protect such information through various other statutes including contract law.

The pitfall in trade secret is that there is no legal remedy for the producer, if a competitor independently arrives at the product of the producer, through reverse engineering or by any other fair means.   

Protection of Product mark or Company Logo:
A product mark is indicative of uniqueness and authenticity of the product. Therefore, protection of such mark or logo is one of the most important aspects of trade and commerce, which can be protected by means of Trademark. The protection under Trademark may be sought to protect any sign or combination of signs that will help the consumers to identify and distinguish that particular good from the others. The pattern of signs include visual, audible, olfactory (smell) or any other sign which can be identified by human senses.

Acknowledgement of Geographic Origin
Some products carry uniqueness of the region where they are grown. Over the time, these products become known for its quality or taste, which is a direct result the specialties of its place of origin. Such products are protected by way Geographic Indication (GI). Hapus mango, also known as Alphanso, cultivated in Western coast of Maharashtra is one such notable example. Among vegetables, Jalgaon brinjal has been accorded with GI tag. It is noteworthy that GI tag can also be registered for the process of making that product. Further, GI tag is not limited to fruits and vegetables only, but extends to any product that shows characteristics of its place of origin.

The GI tag for the product is registered in the name group of producers or association of the producers. Hence, every fruits / vegetable grower in the place of origin can use and enforce the GI tag for the product. The key is that GI tag not only acknowledges the place of origin, but also certifies the quality of the product as a direct result of the place of origin. This is in contrast with the ‘indication source' which merely acknowledges the place as the product’s origin.

How to protect product pamphlets and other informative text:
This particular aspect does not strike our minds at first, but the producers do pay attention to protection of pamphlets or brochure that describes the product or instructs the user regarding usage of the product. The pamphlets and brochures contain text as mode of description, as well as images or sketches to visually support the text. Such description as well as images are treated as creative works, and hence are eligible for protection under Copyright law. The Copyright is for protection of original expression of an idea in the form of creative work and acknowledges monopoly rights of an author of creative work. The key point here is that the Copyright is not granted to mere idea, but the expression of that idea. Further, the idea may be common, but its expression by that particular author has to be original.

Over the time, IPRs have gained increasing prominence in the modern commerce. The fruits and vegetables industry is no exception. The modern technology has made the fruits and vegetable industry even more competitive, due to which the trend of protecting the goods through monopoly rights is on the rise. In this scenario, the let us hope that the rights of the common people as consumers would be upheld.    

(The author is a practicing Intellectual Property Rights Lawyer)
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