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The Courts Businesses Patents

PepsiCo Sues Four Indian Farmers For Using Its Patented Lay's Potatoes (reuters.com) 223

Posted by BeauHD from the cease-and-desist dept.
An anonymous reader quotes a report from Reuters: PepsiCo has sued four Indian farmers for cultivating a potato variety that the snack food and drinks maker claims infringes its patent, the company and the growers said on Friday. Pepsi has sued the farmers for cultivating the FC5 potato variety, grown exclusively for its popular Lay's potato chips. The FC5 variety has a lower moisture content required to make snacks such as potato chips. The company is seeking more than $142,840 each for alleged patent infringement.

"We have been growing potatoes for a long time and we didn't face this problem ever, as we've mostly been using the seeds saved from one harvest to plant the next year's crop," said Bipin Patel, one of the four farmers sued by Pepsi. Patel did not say how he came by the PepsiCo variety. PepsiCo, which set up its first potato chips plant in India in 1989, supplies the FC5 potato variety to a group of farmers who in turn sell their produce to the company at a fixed price. The company said the four farmers could join the group of growers who exclusively grow the FC5 variety for its Lay's potato chips. "PepsiCo India has proposed to amicably settle with the people who were unlawfully using the seeds of its registered variety. PepsiCo has also proposed that they may become part of its collaborative potato farming program," the company spokesman said in a statement.

While the spokesman said the farmers can sign an agreement to cultivate other available varieties if they do not wish to grow the FC5 potato variety for PepsiCo, it raises the question of whether farmers should have the right to grow and sell trademarked crops. More generally, it brings up the controversial question: should plants be patented?

The original ending of the "Little Shop of Horrors" movie musical has a scene with an agent haggling over the rights to the giant plant. He shouts "We don't have to deal with you. A god-damn vegetable is public domain! You ask our lawyers!"
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PepsiCo Sues Four Indian Farmers For Using Its Patented Lay's Potatoes More

PepsiCo Sues Four Indian Farmers For Using Its Patented Lay's Potatoes

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  • Just where I get all my legal advice. (Score:5, Funny)

    by Anonymous Coward on Saturday April 27, 2019 @08:07AM (#58500310)

    Musicals!

    • If this works then perhaps the farmers can just get PepsiCo to watch Frozen then they may just "Let it go".

      • Shouldn't they be using "Let it Grow!" instead, from "The Lorax" by Dr. Seuss?

  • Ridiculous claim (Score:1)

    by Anonymous Coward

    So what? tomorrow some company uses some apples to sell, patent them and no one else is able to grow them without paying a fine? Eventually in a full capitalist world all veggies are patented so you can no longer grow anything if you are not working for the companies.
    Grim precedent here

    • So what? tomorrow some company uses some apples to sell, patent them and no one else is able to grow them without paying a fine? Eventually in a full capitalist world all veggies are patented so you can no longer grow anything if you are not working for the companies. Grim precedent here

      Read The Windup Girl [wikipedia.org]: (which I thought was pretty good)

      Setting:
      Biotechnology is dominant and megacorporations like AgriGen, PurCal and RedStar (called calorie companies) control food production through 'genehacked' seeds, and use bioterrorism, private armies and economic hitmen to create markets for their products.

  • Choice (Score:5, Insightful)

    by JBMcB ( 73720 ) on Saturday April 27, 2019 @08:12AM (#58500328)

    This isn't a case of the farmers accidentally growing patented crops, they knowingly cultivated and harvested this particular strain of potatoes.

    The farmers didn't have to use the patented potatoes. They could have used something else. If they didn't want to use patented potatoes there are hundreds of other of varietals they could have grown. They simply wanted to grow the patented crops without paying.

    • Re: (Score:2, Interesting)

      by msauve ( 701917 )
      What of the case where there was cross-pollination? AIR, a patented "Roundup" resistant form of crop cross pollinated into a neighboring field. The neighbor didn't make any choice, didn't even have a choice. But when they used their own seed the next year, they were sued for patent infringement.

      • Re:Choice (Score:5, Insightful)

        by JBMcB ( 73720 ) on Saturday April 27, 2019 @08:37AM (#58500408)

        What of the case where there was cross-pollination? AIR, a patented "Roundup" resistant form of crop cross pollinated into a neighboring field. The neighbor didn't make any choice, didn't even have a choice. But when they used their own seed the next year, they were sued for patent infringement.

        I've heard people bring up these cases a lot. Can you show me one where the farmer didn't *knowingly* replant their field with the patented crop? The most famous case out of Canada was where the farmer testified in court that they did so. I've yet to see a lawsuit showing the farmer didn't know exactly what they were doing.

        The trick is to look up the actual court decision, which is usually available online. I've found reporting on these cases will usually leave out rather important details.

        • Re:Choice (Score:5, Insightful)

          by JaredOfEuropa ( 526365 ) on Saturday April 27, 2019 @08:43AM (#58500424) Journal
          So, if your field happens to be cross-pollinated by a patented crop on a neighboring field, is your only choice then to buy seeds for replanting rather than using your own contaminated stock? And if so, can you sue the neighbor for the extra cost? I can well understand that the farmers in question choose to replant using their own seeds... and I think the law would need a few tweaks, if cross pollination means that more and more farmers will face the choice of going out of pocket for new seed stock, or forever be beholden to the likes of Monsanto.

          • Call (Score:5, Informative)

            by JBMcB ( 73720 ) on Saturday April 27, 2019 @08:45AM (#58500434)

            These companies have programs for this. If you think your fields are contaminated with their plants, you call them up, they come out and test your crop, remove any cross-pollinated plants, and reimburse you for the lost crops.

            • 1. Buy empty farming field surrounded by fields growing Monsanto GMO crops.
              2. Wait for an "accident" to happen and then call Monsanto to buy my infected crops.
              3. Profits!

              • Don't forget terminator seeds! (Score:3, Interesting)

                by Anonymous Coward

                Don't count on it. One GMO technology that's started a lot of controversy is the concept of "terminator seeds". They're seeds that have been engineered to produce seedless crops. This makes it impossible to harvest seeds from your crops, so you need to keep buying more seeds from your supplier in order to keep growing in the next season.

                Proponents of this technology argue that this prevents cross-pollination and contamination of nearby organic farms. Also, seedless crops can be pretty neat and make eati

                • A simple search on farmers harvesting vs buying seeds shows that buying new seed every year has many benefits and is cheaper. A farmer having to do everything is self-sufficient but if the farmer lets a seeding company handle that, the seeding company does that job more efficiently and sells the results to the farmer cheaper then the farmer could reproduce on a lower scale.

                  Specializing improves efficiency.

                  • Re: (Score:2)

                    by Reziac ( 43301 ) *

                    Also you get a more consistent crop, with known characteristics selected for your local conditions, thus more consistent profits. Saving seeds may be all well and good for self-sufficiency or if you're trying to develop your own varieties, but the initial fail rate is quite high, especially when there's some unknown hybridization (which happens all the time with open-pollinated crops).

                    I plant a lot of saved seeds in my own garden, both flowers and veggies. Sometimes the results are good; sometimes they're w

        • To add to that, in that notable Canadian case, the farmer who got sued by Monsanto for violating their roundup ready soybeans patent was purposefully spraying his soybeans that were near his neighbors field with roundup, and then collecting the seeds from his cross-pollinated plants that survived. When you take active steps like that to copy a patented product, well you should expect a lawsuit. As for the question of whether new crop varieties should be patented at all, well you have to ask yourself where

          • Why is it even required that companies invest that amount of time and money on improving crops? 20 year old varieties work just as well now as they did 20 years ago. Until recently the farming industry was quite capable of managing without them. Its only big business (ie. PepsiCo, Walmart etc) forcing food prices down, resulting in pushing farmers to below the bread line and out of business, in the pursuit of bigger corporate profits that has forced farmers into the corporate traps they are now in. And n

            • Why is it even required that companies invest that amount of time and money on improving cars? 20 year old designs work just as well now as they did 20 years ago.

            • Re: (Score:2)

              by bahwi ( 43111 )

              "20 year old varieties work just as well now as they did 20 years ago."

              WTF? Hahahaha, no, they don't. Most crops are on cycles between 5 and 15 years due to pests, diseases, and recently weather changes. A 20-year old crop is going to be wiped out probably in a month or two, or with enough toxic pesticides to make the end product carcinogenic (even if organic, thanks to elemental copper and other nasties organic uses).

              And even if you did get something from the 20-year old stock, it's going to be significant

          • Re:Choice (Score:5, Insightful)

            by spire3661 ( 1038968 ) on Saturday April 27, 2019 @10:24AM (#58500802) Journal
            Life should not be patentable, period. I have zero sympathy for people who lock up knowledge. IP is outright FICTION.

        • There was a documentary about this. (Forget name) In Mexico they proved in court that Monsanto was sending people to plant seed in farmer's fields. So they could later say, "Work with us or pay up."

        • This is relevant, but don't know if it's what is being alluded to. https://en.wikipedia.org/wiki/... [wikipedia.org]

        • Re: (Score:2)

          by msauve ( 701917 )
          What's "knowing" have to do with anything? It's his seed, he should be able to use it. Unless he's able to do gene analysis, he doesn't "know" if his seed contains the gene.

          But, by your argument, I see a good opportunity.

          1) Patent some dominant gene, for a bunch of different crops (it only has to be useful as a marker)
          2) Give free seed to some farmers near others who re-seed.
          3) ???
          4) PROFIT!!!

    • Re:Choice (Score:5, Interesting)

      by gnasher719 ( 869701 ) on Saturday April 27, 2019 @08:22AM (#58500368)
      Sure, they want to use these potatoes without paying. The big question: Is it legal, in India, a country that is very interested in having enough food for its population, and a country that fought an empire and won (back when Britain was an empire), to plant potatoes without paying?

      Here's the big risk for PepsiCo: A court in India could very well decide that a patent on potatoes (potato patent for the planting of patented potatoes) is worth diddly because growing plants is not infringing on the patent.

      If that is the case, then _nobody_ will pay them anymore.

      • Re: (Score:3)

        by JBMcB ( 73720 )

        Here's the big risk for PepsiCo: A court in India could very well decide that a patent on potatoes (potato patent for the planting of patented potatoes) is worth diddly because growing plants is not infringing on the patent.

        This was already decided for cotton crops. They are absolutely patent-able. Deciding otherwise would be a pretty big double-edged sword, as Indian companies are working on their own patented crops. It would have some pretty severe WTO implications, as well. I'm sure India would like to continue selling cotton to Europe and the US. If they were using patented crops to do so, under the terms of the WTO, they could be barred from those markets.

      • No, it isn't legal in India. India grows 60% of potatoes for PepsiCo so they politicians aren't going to allow that.

      • Re: (Score:2)

        by jrumney ( 197329 )
        India is a signatory to WTO patent agreements, so probably a court cannot decide the patents are worth diddly. The Indian government can decide that it deserves a compulsory license though, which will prevent Pepsico from controlling the use, and regulate the amount they can charge.
    • given the number of people starving in India that we're quibbling over crap like this.

    • Re: (Score:2)

      by rtb61 ( 674572 )

      They planted what they owned. They did not steal anything. They lost control of that particular varietal of potato, so fucking what. The farmers are fully entitled to plant and grow it, under trademark all they can not do is sell it branded as that varietal, that is it. A major US corporations is simply trying to destroy a bunch of working in poverty India farmers as a warning to all the others. Honestly, the Indian population will most definitely look favourably on this and seriously in India, I would imme

      • Lay contracts the farmer's land and labor to grow the potatoes. Lay provides the seed and the farmers have go by Lay's production instructions. Every potato produced belongs to Lay, the farmers did steal them.

  • Should go to court, and get precedent. (Score:1)

    by Anonymous Coward

    Pepsi needs a smackdown on this. You should not be able to patent a plant/dna/etc.

    They've done the work on this 'plant' before knowing if it truly is patentable or not. It should not be, it's a plant. And to be fair, should be fair claim that a RANDOM mutation could also produce this strain (after all, how did pepsi get to this? Mutations? Likely).

    Thus, this has the *possibility* of happening in nature on it's own. So therefore pepsi can take a long walk of a short pier.

    • Yeah well too bad. Everyone already decided that you can patent plants/dna/etc. This isn't exactly new.

    • In the US, seed patents have been around since the 1930s. I don't know about India, but I am guessing that Pepsico wouldn't sue unless they were sure the Indian patent system would support them. Developing a new variety of seeds is a lot of work, that needs a lot of R&D money. Without seed patents, seed companies wouldn't bother with this R&D investment, and progress in the field would slow significantly. And patents are only 20 years, which means that seed companies have to keep releasing new, b

  • Uh, what? (Score:5, Informative)

    by msauve ( 701917 ) on Saturday April 27, 2019 @08:13AM (#58500338)
    "...the right to grow and sell trademarked crops. More generally, it brings up the controversial question: should plants be patented? "

    Someone doesn't understand the difference between trademarks and patents.
    • Comment removed based on user account deletion

      • Re: (Score:2)

        by msauve ( 701917 )
        Or a CNN reader. Their article about this was even more egregious - it kept saying "trademark", and never mentioned patents, which basically made it illegible. WTF? Unless the farmers were trying to sell "Lay's Special Potatoes FC5", that's not an issue.

        Perhaps Indian law is very different, and something is being lost in translation.

  • $142,840 for each infringement? (Score:4, Funny)

    by Anonymous Coward on Saturday April 27, 2019 @08:18AM (#58500360)

    That isn't small potatoes ....

    • I, on the other hand, seriously hope it's small potatoes.

      I mean, can you imagine the size of a potato that's worth nearly 143K$?

  • Patent plants? Well, yes. (Score:1)

    by Anonymous Coward

    From Nolo.com: "In 1930, the United States began granting patents for plants. By 1931, the very first plant patent was issued to Henry Bosenberg for his climbing, ever-blooming rose. Under patent law, the inventor of a plant is the person who first appreciates its distinctive qualities and reproduces it asexually."

    • Only asexual reproduction such as cuttings - not reproduction by seed - is eligible for plant patent in the US. (There are 3 types of patents in the US: Utility, Design, and Plant. Utility patents are what we think of as real patents, protecting against copying functional aspects of a machine or process. Design patents cover appearance only.) Only in the 1980s did the US start granting utility patents for bioengineered plants and animals, and that was done by the PTO without new law from Congress. Since the

  • OK, so Lays thinks it can win -- their lawyers porbably know the Indian courts and the law. How much they can get is a different question. The farmers will go bankrupt and I doubt they will cover their costs.

    Maybe they are after a precedent, but there can be overseas blowback -- How many people worldwide know that Lays uses a modified potato varient? Hybridized is often confounded for genetically modified and Lays will be asked questions with a chance to explain if it is lucky. Many other won't bother a

  • Perhaps in the last 30 years, some bees pollinated some other potatoes and got into the other potatoes, and ended up with the "Lays" variety.

    • Although the story uses the word "seeds"... in the case of potatoes, the plants are generally grown by planting the smaller potatoes ("seed potatoes") from the previous harvest - they're genetically identical to their larger siblings, but their size makes them unsuitable for processing.

      Different varieties have traditionally arisen from spontaneous genetic mutation (a "sport") in a plant or part of a plant. While it is possible to grow them from true seeds, cross-pollinating their flowers is a laborious proc

  • The article doesn't mention the patent number nor jurisdiction (US, India, other). I can't find any records at the USPTO that match PepsiCo, FC5 or seem to have anything to do with potatoes.

    Any other details?

  • Seeds should not be patentable (Score:4, Insightful)

    by bradley13 ( 1118935 ) on Saturday April 27, 2019 @10:06AM (#58500714) Homepage

    No patents on seeds [no-patents-on-seeds.org]. Lifeforms, or important parts of lifeforms (like DNA sequences) should not be considered "intellectual property" of any kind. Because, in fact, they are not intellectual property at all, but rather (parts of) independent living organisms. If a farmer saves seeds (or seed potatoes, or whatever) from his last harvest, they are his seeds, and he can damned well plant them.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      So...

      If as a company I spend $100 million to develop a seed that is superior in some form to anything else on the market, I should not have protection?

    • Re:Seeds should not be patentable (Score:4, Insightful)

      by ChromeAeonuim ( 1026946 ) on Saturday April 27, 2019 @12:52PM (#58501290)
      I work in plant breeding. How much money have you donated to plant breeders lately? Oh, nothing? So you want a food supply that is safe, abundant, and cheap, but you think those of us who work hard to ensure you have food on the table do not deserve to make a living, or that we should just provide the genetic basis for your nutrition for free? Answer this, who pays the bills of the plant breeder when the plant breeder cannot make a living from their own hard work?

      Your point is logically inconsistent. No one is being forced to grow patented plants. If you want the benefits of patented plant varieties, then you agree that patents are useful. If you think that plant patents should not be a thing, then there is no reason to use plants that were supported with patents.

      • Re: (Score:2)

        by Cederic ( 9623 )

        How much money have you donated to plant breeders lately?

        I chose against supporting melon fuckers.

      • Re:Seeds should not be patentable (Score:5, Insightful)

        by TrekkieGod ( 627867 ) on Sunday April 28, 2019 @12:23AM (#58503804) Homepage Journal

        I work in plant breeding. How much money have you donated to plant breeders lately? Oh, nothing? So you want a food supply that is safe, abundant, and cheap, but you think those of us who work hard to ensure you have food on the table do not deserve to make a living, or that we should just provide the genetic basis for your nutrition for free?

        If you can't make money in your field without patenting DNA, then quit the field. I don't have anything against GMO, but the benefits are not worth the cost in intellectual property.

        Do you use online banking? Did you donate money to mathematicians that developed encryption algorithms? Do you realize mathematical algorithms aren't patenteable? Do you want to live in a world with the benefits of mathematics without ensuring mathematicians can put food on the table?

        The world doesn't owe you a profitable business model. Either find one that works within reasonable constraints, or work on something else.

    • Re: (Score:2)

      by bahwi ( 43111 )

      Crop plants thrive in an agroecosystem and are thus pretty much dependent on humans. They are not independent living organisms, as they quickly die in a few generations outside of agricultural systems.

      The targeted breeding done to them would not occur in nature. An Irish potato and a Chilean potato do not "meet magically in nature to get it on."

    • Frito Lay does not sell seed potatoes, they contract farmers to grow Frito's special potatoes. All the crop belongs to Frito, the farmers stole those potatoes. In my area of north Florida Frito pays farmers by the acre to grow the potatoes, the farmers have to plant and fertilize the crop to Frito's specification. They are paid a princely sum to do this, everyone wants a Frito contract.

      I grew potatoes here from 1971 until 1995 and still keep up with the business. There is a 40 acre field ready to harvest ac

  • The TRIPS Agreement, which all 162 WTO member states are bound by, explicitly requires that plant varieties be protectable. There's no chance India is going to decide to quit the WTO.

    Countries don't have to specifically use their patent system for plants; the UPOV Convention [wikipedia.org] provides for a slightly different approach. One thing UPOV allows that patent regimes generally don't is for farmers to save their seed and grow again the next year (though selling it for other people to propagate is banned). But the

  • Patent a living organism whose basic instinct is to spread itself as far as possible, and then sue anyone who accidentally copies it after it invades your field.

    And then possibly offer to take the field as settlement for the damages.

    Plant your own crops.

    Lather, rinse, repeat.

  • Pepsico and Monsanto SUCK.

    Check out Monsantos' response when some of their special grow-once-and-die seeds contaminated a neighboring farmer's property and crops (spoiler alert, they sued him, and then everyone sued everyone everywhere) :

    Organic Farmer Dealt Final Blow in Landmark Lawsuit Over Monsanto's GMO Contamination
    https://www.ecowatch.com/organ... [ecowatch.com]

    https://www.theguardian.com/en... [theguardian.com]

    https://althealthworks.com/977... [althealthworks.com]

    https://www.fooddemocracynow.o... [fooddemocracynow.org]

    • Re: (Score:2)

      by bahwi ( 43111 )

      Wait, so this guy wanted to plant a specialized category of produce, knew the risks, and sued when one of the risks happened? Who does he sue for drought? Why are his crops worthless now? Not-organic doesn't mean you can't sell them at the market. It just means you can't call them "organic."

      I can't believe idiots like this are allowed to have businesses.

  • I'm going to make so many potato chips.

    • Lays are not that great - might as well just purchase the store brand.

      • They put too much salt on them and use cheap oil that smells bad. I think if fresh oil and a reasonable amount of season was used they'd have real potential.

  • The linked article does not provide enough information to form a judgment on this case. In particular, it does not indicate how these farmers came to grow the variety of potato in question. If one accepts the validity of patents on plants and of this particular patent, if the farmers deliberately obtained seed for the patented variety without the necessary license, Pepsico would appear to be in the right. On the other hand, if the farmers ended up growing this variety through no act of their own, e.g. beca
  • Growing food is a basic right. No company has the right to control life, be it vegetable/fruit, animal or human. If a farmer wants to grow potatoes or canola, that is her right. Patented seeds of any kind is absurd. Basic humane rules, like survival, must always supersede corporate ones. A company cannot say, 'that air you breathe and that water you drink is patented.' Those who place corporate rules over basic survival are pretty much the enemy of any kind of life. You cannot even patent a recipe. People

  • I always had a problem with farmers not being able to hold back crop for seed because of trademark and other legal issues. IMO, this is one of the reasons smaller farms cannot make it.

    it is just as bad as not being able to legally repair their own tractors and other farm equipment.

  • Have you noticed that there is no concept of intellectual property rights in Star Trek? Say what you want about warp drive and transporters but IMHO, the only way humanity is ever going to get there is to do away with IP. Of course, you have to also do away with money and the need for it. Vast quantities of free energy is essential to that goal. Makes you wonder why certain people seem to want to thwart any effort to make energy as cheap and plentiful as possible. Maybe because they realize that if you

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