S. 1406 (103^rd): Plant Variety Protection Act Amendments of 1994

S 1406 IS

103d CONGRESS

1st Session

S. 1406

To amend the Plant Variety Protection Act to make such Act consistent with the International Convention for the Protection of New Varieties of Plants of March 19, 1991, to which the United States is a signatory, and for other purposes.

IN THE SENATE OF THE UNITED STATES

AUGUST 6 (legislative day, JUNE 30), 1993

Mr. KERREY (for himself and Mr. DASCHLE) introduced the following bill; which was read twice and referred to the Committee on Agriculture, Nutrition, and Forestry

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A BILL

To amend the Plant Variety Protection Act to make such Act consistent with the International Convention for the Protection of New Varieties of Plants of March 19, 1991, to which the United States is a signatory, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES.

(a) SHORT TITLE- This Act may be cited as the ‘Plant Variety Protection Act Amendments of 1993’.

(b) REFERENCES TO PLANT VARIETY PROTECTION ACT- Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).

SEC. 2. DEFINITIONS AND RULES OF CONSTRUCTION.

Section 41 (7 U.S.C. 2401) is amended to read as follows:

‘SEC. 41. DEFINITIONS AND RULES OF CONSTRUCTION.

‘(a) DEFINITIONS- As used in this Act:

‘(1) BASIC SEED- The term ‘basic seed’ means the seed planted to produce certified or commercial seed.

‘(2) BREEDER- The term ‘breeder’ means the person who directs the final breeding creating a variety or who discovers and develops a variety. If the actions are conducted by an agent on behalf of a principal, the principal, rather than the agent, shall be considered the breeder. The term does not include a person who redevelops or rediscovers a variety the existence of which is publicly known or a matter of common knowledge.

‘(3) ESSENTIALLY DERIVED VARIETY-

‘(A) IN GENERAL- The term ‘essentially derived variety’ means a variety that--

‘(i) is predominantly derived from another variety (referred to in this paragraph as the ‘initial variety’) or from a variety that is predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety;

‘(ii) is clearly distinguishable from the initial variety; and

‘(iii) except for differences that result from the act of derivation, conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.

‘(B) METHODS- An essentially derived variety may be obtained by the selection of a natural or induced mutant or of a somaclonal variant, the selection of a variant individual from plants of the initial variety, backcrossing, transformation by genetic engineering, or other method.

‘(4) KIND- The term ‘kind’ means one or more related species or subspecies singly or collectively known by one common name, such as soybean, flax, or radish.

‘(5) SEXUALLY REPRODUCED- The term ‘sexually reproduced’ includes any production of a variety by seed.

‘(6) UNITED STATES- The terms ‘United States’ and ‘this country’ mean the United States, territories and possessions of the United States, and the Commonwealth of Puerto Rico.

‘(7) VARIETY- The term ‘variety’ means a plant grouping within a single botanical taxon of the lowest known rank, that, without regard to whether the conditions for plant variety protection are fully met, can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one characteristic and considered as a unit with regard to the suitability of the plant grouping for being propagated unchanged. A variety may be represented by seed, transplants, plants, and other matter.

‘(b) RULES OF CONSTRUCTION- For the purposes of this Act:

‘(1) SALE OR DISPOSITION FOR NONREPRODUCTIVE PURPOSES- The sale or disposition, for other than reproductive purposes, of harvested material produced as a result of experimentation or testing of a variety to ascertain the characteristics of the variety, or as a by-product of increasing a variety, shall not be considered to be a sale or disposition for purposes of exploitation of the variety.

‘(2) SALE OR DISPOSITION FOR REPRODUCTIVE PURPOSES- The sale or disposition of a variety for reproductive purposes shall not be considered to be a sale or disposition for the purposes of exploitation of the variety if the sale or disposition is done as an integral part of a program of experimentation or testing to ascertain the characteristics of the variety, or to increase the variety on behalf of the breeder or the successor in interest of the breeder.

‘(3) SALE OR DISPOSITION OF HYBRID SEED- The sale or disposition of hybrid seed shall be considered to be a sale or disposition of harvested material of the varieties from which the seed was produced.

‘(4) APPLICATION FOR PROTECTION OR ENTERING INTO A REGISTER OF VARIETIES- The filing of an application for the protection or for the entering of a variety in an official register of varieties, in any country, shall be considered to render the variety a matter of common knowledge from the date of the application, if the application leads to the granting of protection or to the entering of the variety in the official register of varieties, as the case may be.

‘(5) DISTINCTNESS- The distinctness of one variety from another may be based on one or more identifiable morphological, physiological, or other characteristics (including any characteristics evidenced by processing or product characteristics, such as milling and baking characteristics in the case of wheat) with respect to which a difference in genealogy may contribute evidence.

‘(6) PUBLICLY KNOWN VARIETIES-

‘(A) IN GENERAL- A variety that is adequately described by a publication reasonably considered to be a part of the public technical knowledge in the United States shall be considered to be publicly known and a matter of common knowledge.

‘(B) DESCRIPTION- A description that meets the requirements of subparagraph (A) shall include a disclosure of the principal characteristics by which a variety is distinguished.

‘(C) OTHER MEANS- A variety may become publicly known and a matter of common knowledge by other means.’.

SEC. 3. RIGHT TO PLANT VARIETY PROTECTION; PLANT VARIETIES PROTECTABLE.

Section 42 (7 U.S.C. 2402) is amended to read as follows:

‘SEC. 42. RIGHT TO PLANT VARIETY PROTECTION; PLANT VARIETIES PROTECTABLE.

‘(a) IN GENERAL- The breeder of any sexually reproduced plant variety (other than fungi or bacteria) who has so reproduced the variety, or the successor in interest of the breeder, shall be entitled to plant variety protection for the variety, subject to the conditions and requirements of this Act, if the variety is--

‘(1) new, in the sense that, on the date of filing of the application for plant variety protection, propagating or harvested material of the variety has not been sold or otherwise disposed of to other persons, by or with the consent of the breeder, or the successor in interest of the breeder, for purposes of exploitation of the variety--

‘(A) in the United States, more than 1 year prior to the date of filing; or

‘(B) in any area outside of the United States--

‘(i) more than 4 years prior to the date of filing; or

‘(ii) in the case of a tree or vine, more than 6 years prior to the date of filing;

‘(2) distinct, in the sense that the variety is clearly distinguishable from any other variety the existence of which is publicly known or a matter of common knowledge at the time of the filing of the application;

‘(3) uniform, in the sense that any variations are describable, predictable, and commercially acceptable; and

‘(4) stable, in the sense that the variety, when sexually reproduced, will remain unchanged with regard to the essential and distinctive characteristics of the variety with a reasonable degree of reliability commensurate with that of varieties of the same category in which the same breeding method is employed.

‘(b) MULTIPLE APPLICANTS-

‘(1) IN GENERAL- If 2 or more applicants submit applications on the same effective filing date for varieties that cannot be clearly distinguished from one another, but that fulfill all other requirements of subsection (a), the applicant who first complies with all requirements of this Act shall be entitled to a certificate of plant variety protection, to the exclusion of any other applicant.

‘(2) REQUIREMENTS COMPLETED ON SAME DATE-

‘(A) IN GENERAL- Except as provided in subparagraph (B), if 2 or more applicants comply with all requirements for protection on the same date, a certificate shall be issued for each variety.

‘(B) VARIETIES INDISTINGUISHABLE- If the varieties that are the subject of the applications cannot be distinguished in any manner, a single certificate shall be issued jointly to the applicants.’.

SEC. 4. APPLICATIONS.

Section 52 (7 U.S.C. 2422) is amended--

(1) in paragraph (1), by adding at the end the following new sentence: ‘The variety shall be named in accordance with regulations issued by the Secretary.’;

(2) in the first sentence of paragraph (2), by striking ‘novelty’ and inserting ‘distinctiveness, uniformity, and stability’;

(3) by redesignating paragraphs (3) and (4) as paragraphs (4) and (5), respectively; and

(4) by inserting after paragraph (2) the following new paragraph:

‘(3) A statement of the basis of the claim of the applicant that the variety is new.’.

SEC. 5. BENEFIT OF EARLIER FILING DATE.

Section 55(a) (7 U.S.C. 2425(a)) is amended--

(1) by redesignating the first and second sentences as paragraphs (1) and (2), respectively;

(2) in paragraph (1) (as so designated), by inserting before the period at the end the following: ‘, not including the date on which the application is filed in the foreign country’; and

(3) by adding at the end the following new paragraph:

‘(3)(A) An applicant entitled to a right of priority under this subsection shall be allowed to furnish any necessary information, document, or material required for the purpose of the examination of the application during--

‘(i) the 2-year period beginning on the date of the expiration of the period of priority ; or

‘(ii) if the first application is rejected or withdrawn, an appropriate period after the rejection or withdrawal, to be determined by the Secretary.

‘(B) An event occurring within the period of priority (such as the filing of another application or use of the variety that is the subject of the first application) shall not constitute a ground for rejecting the application or give rise to any third party right.’.

SEC. 6. CONTENTS AND TERM OF PLANT VARIETY PROTECTION.

Section 83 (7 U.S.C. 2483) is amended--

(1) in the second sentence of subsection (a), by striking ‘by variety name’;

(2) in the first sentence of subsection (b)--

(A) by striking ‘eighteen’ and inserting ‘20’; and

(B) by inserting before the period at the end the following: ‘, except that, in the case of a tree or vine, the term of the plant variety protection shall expire 25 years from the date of issue of the certificate’; and

(3) in subsection (c), by striking ‘repository: Provided, however, That’ and inserting ‘repository, or requiring the submission of a different name for the variety, except that’.

SEC. 7. PRIORITY CONTEST.

(a) PRIORITY CONTEST; EFFECT OF ADVERSE FINAL JUDGMENT OR INACTION- Sections 92 and 93 (7 U.S.C. 2502 and 2503) are repealed.

(b) INTERFERING PLANT; VARIETY PROTECTION-

(1) REDESIGNATION- Chapter 9 of title II (7 U.S.C. 2501 et seq.) is amended by redesignating section 94 (7 U.S.C. 2504) as section 92.

(2) AMENDMENTS- Section 92 (as so redesignated) is amended--

(A) by striking ‘The owner’ and inserting ‘(a) The owner’; and

(B) by striking the second sentence.

(c) APPEAL OR CIVIL ACTION IN CONTESTED CASES-

(1) TRANSFER- Section 73 (7 U.S.C. 2463) is amended by transferring subsection (b) to the end of section 92 (as redesignated by subsection (b)(1)).

(2) REPEAL- Section 73 (as amended by paragraph (1)) is repealed.

(d) CONFORMING AMENDMENT- Section 71 (7 U.S.C. 2461) is amended by striking ‘92,’.

SEC. 8. INFRINGEMENT OF PLANT VARIETY PROTECTION.

Section 111 (7 U.S.C. 2541) is amended--

(1) in subsection (a)--

(A) by striking ‘novel’ the first two places it appears and inserting ‘protected’;

(B) in paragraph (1), by striking ‘the novel’ and inserting ‘or market the protected’;

(C) by striking ‘novel’ each place it appears in paragraphs (2) through (7);

(D) by striking ‘or’ each place it appears at the end of paragraphs (3) through (6);

(E) by redesignating paragraphs (7) and (8) as paragraphs (9) and (10), respectively; and

(F) by inserting after paragraph (6) the following new paragraphs:

‘(7) condition the variety for the purpose of propagation;

‘(8) stock the variety for any of the purposes referred to in paragraphs (1) through (7);’;

(2) by redesignating subsection (b) as subsection (f); and

(3) by inserting after subsection (a) the following new subsections:

‘(b) The owner of a protected variety may authorize the use of the variety under this section subject to conditions and limitations specified by the owner.

‘(c) This section shall apply equally to--

‘(1) any variety that is essentially derived from a protected variety, unless the protected variety is an essentially derived variety;

‘(2) any variety that is not clearly distinguishable from a protected variety;

‘(3) any variety whose production requires the repeated use of a protected variety; and

‘(4) harvested material (including entire plants and parts of plants) obtained through the unauthorized use of propagating material of a protected variety, unless the owner of the variety has had a reasonable opportunity to exercise the rights provided by this Act with respect to the propagating material.

‘(d) It shall not be an infringement of the rights of the owner of a variety to perform any act concerning propagating material of any kind, or harvested material, including entire plants and parts of plants, of a protected variety that has been sold or otherwise marketed with the consent of the owner in the United States, unless the act involves further propagation of the variety or involves an export of material of the variety, that enables the propagation of the variety, into a country that does not protect varieties of the plant genus or species to which the variety belongs, unless the exported material is for final consumption purposes.

‘(e) It shall not be an infringement of the rights of the owner of a variety to perform any act done privately and for noncommercial purposes.’.

SEC. 9. RIGHT TO SAVE SEED; CROP EXEMPTION.

The first sentence of section 113 (7 U.S.C. 2543) is amended by striking ‘section: Provided, That’ and all that follows through the period and inserting ‘section.’.

SEC. 10. LIMITATION OF DAMAGES; MARKING AND NOTICE.

Section 127 (7 U.S.C. 2567) is amended by striking ‘novel’ each place it appears.

SEC. 11. OBLIGATION TO USE VARIETY NAME.

Section 128(a) (7 U.S.C. 2568(a)) is amended by adding at the end the following new paragraph:

‘(4) Failure to use the name of a variety for which a certificate of protection has been issued under this Act, even after the expiration of the certificate.’.

SEC. 12. TRANSITIONAL PROVISIONS.

(a) IN GENERAL- Except as provided in subsection (b), any variety for which a certificate of plant variety protection has been issued prior to the effective date of this Act, and any variety for which an application is pending on the effective date of this Act, shall continue to be governed by the Plant Variety Protection Act (7 U.S.C. 2321 et seq.), as in effect on the day before the effective date of this Act.

(b) APPLICATIONS WITHDRAWN AND REFILED- If a pending application is withdrawn and refiled after the effective date of this Act, eligibility for protection and the terms of protection shall be governed by the Plant Variety Protection Act, as amended by this Act.

SEC. 13. EFFECTIVE DATE.

This Act and the amendments made by this Act shall become effective 180 days after the date of enactment of this Act.

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