Biopiracy: Neem, Turmeric, Basmati and the PepsiCo Potato Dispute
Law of Intellectual Property and Plant Varieties · Unit I · Topic 4 of 12 · 6 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Meaning
“Biopiracy” is a political term, popularised by activists such as Vandana Shiva and the group RAFI (now ETC Group), for the appropriation of biological resources or traditional knowledge, usually from developing countries, through IP rights, without the consent of or benefit sharing with the communities or states that provided them. It takes two forms:
- Bad patents: patents granted on uses or products already known in traditional practice, because the patent office did not have access to the prior art (often oral or in non-English texts).
- Misappropriation: valid IP obtained through access to resources or knowledge without prior informed consent or benefit sharing, contrary to the CBD.
The structural cause is the mismatch between TRIPS (which requires patents without asking where the material came from) and the CBD (which makes access conditional on consent and benefit sharing), and the treatment of TK as public domain in patent law.
2. Turmeric (United States, 1995–1997)
US Patent No. 5,401,504, granted in 1995 to two researchers at the University of Mississippi Medical Center, claimed the use of turmeric powder for healing wounds. The CSIR requested re-examination, producing Indian texts, including old Sanskrit sources and a 1953 paper in the Journal of the Indian Medical Association, showing the use was well known. The USPTO revoked the patent in 1997 for lack of novelty. It was the first successful challenge by India to a patent based on TK, and it led to the TKDL.
3. Neem (European Patent Office, 1994–2005)
The neem tree (Azadirachta indica) has been used in India for centuries as a pesticide and fungicide. The EPO granted European Patent No. 0436257 in 1994 to W.R. Grace and the US Department of Agriculture for a method of controlling fungi on plants using a hydrophobic extract of neem oil. An opposition was filed by Vandana Shiva’s Research Foundation, the International Federation of Organic Agriculture Movements and Magda Aelvoet (then a Green member of the European Parliament). Evidence from an Indian manufacturer showed that the same use had been known and practised in India before the priority date. The Opposition Division revoked the patent in 2000 for lack of novelty and inventive step, and the Technical Board of Appeal dismissed the patentees’ appeal in 2005.
Lessons: prior public use outside Europe counted under the EPC’s worldwide novelty; but the challenge took eleven years and was paid for by NGOs. Defensive protection must be cheap and quick.
4. Basmati (United States, 1997–2001)
US Patent No. 5,663,484, granted in 1997 to RiceTec Inc. of Texas, was titled “Basmati rice lines and grains”. Its claims covered novel rice lines bred from basmati and Western semi-dwarf varieties, grains with defined characteristics, and methods of breeding, and the company marketed rice as “Texmati” and “Kasmati”. India (through APEDA and the CSIR) requested re-examination in 2000, challenging the claims on grain characteristics. RiceTec withdrew several claims, and in 2001 the USPTO allowed only narrow claims to three specific rice lines; the title was changed to remove “basmati”.
Lessons: the patent did not stop Indian exports of basmati, but the use of “basmati” as a generic description threatened India’s market. The real remedy was a geographical indication, not a patent challenge. India registered “Basmati” as a GI under the GI Act, 1999, and has applied for GI protection in the EU, an application opposed by Pakistan.
5. Other examples
- Hoodia: the South African CSIR patented the appetite-suppressing compound of the hoodia cactus used by the San people, licensing it to Pfizer; after protest, a benefit-sharing agreement with the San Council was signed in 2003.
- Enola bean: a US patent on a yellow bean of Mexican origin was used to sue Mexican importers; it was finally cancelled after re-examination.
- Bt brinjal: complaints were made to the National Biodiversity Authority that Indian brinjal varieties had been used in developing Bt brinjal without approval under the Biological Diversity Act, leading to proceedings against the companies and institutions involved.
6. India’s legal responses
- The Patents (Amendment) Acts of 2002 and 2005: section 3(p) (TK is not an invention); anticipation by local or indigenous knowledge as a ground of opposition and revocation; mandatory disclosure of the source of biological material (section 10(4)).
- The Traditional Knowledge Digital Library, shared with foreign patent offices.
- The Biological Diversity Act, 2002: NBA approval for IP based on Indian resources; benefit sharing.
- The PPV&FR Act, 2001: disclosure of passport data and of contributions by farmers and communities (sections 18 and 40); benefit sharing and community compensation; farmers’ varieties.
- The GI Act, 1999: protection of basmati, Darjeeling and other regional names.
- Internationally, support for a disclosure requirement in TRIPS and the 2024 WIPO Treaty on IP, Genetic Resources and Associated TK.
7. The PepsiCo potato dispute (2019–2024)
Facts. PepsiCo India held a registration under the PPV&FR Act for the potato variety FL-2027 (traded as FC-5), used for its Lay’s chips and grown by contract farmers. In April 2019 it sued several farmers in Gujarat for growing and selling FL-2027 outside its contract programme, claiming infringement under section 64 and large damages.
The farmers’ defence. Section 39(1)(iv) entitles a farmer to save, use, sow, resow, exchange, share or sell farm produce including seed of a protected variety, except branded seed; and section 42 protects a farmer unaware of the right. Farmers’ organisations and the public protested, and PepsiCo withdrew the suits in May 2019.
Revocation. A farmers’ rights activist, Kavitha Kuruganti, applied to the PPV&FR Authority under section 34 to revoke the registration. In December 2021 the Authority revoked it on the ground that the registration rested on incorrect information, including the choice of the “new variety” category for what was an extant variety and the date of first commercial sale. In February 2022 its application for renewal was also rejected.
The High Court. A single judge of the Delhi High Court upheld the revocation in July 2023, mainly on the ground of incorrect information and documentation. On 9 January 2024 a Division Bench (PepsiCo India Holdings Pvt. Ltd. v. Kavitha Kuruganti, LPA 590/2023) allowed PepsiCo’s appeal and set aside the single judge’s order, the Authority’s revocation and the rejection of renewal. The Bench held that an error in choosing the category of variety on the application form was curable, particularly since the Registrar had processed the application, and did not by itself justify revocation under section 34.
How this is examined
A 16-mark essay on biopiracy or a short note on any one episode. For the essay: define biopiracy, explain the TRIPS–CBD gap, take three cases (turmeric, neem, basmati), then India’s responses, and end with the PepsiCo dispute as the domestic counterpart. Give patent numbers and years only where you are sure of them.
Now try the real questions: Law of Intellectual Property and Plant Varieties past question papers.