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ELECTRONIC CODE OF FEDERAL REGULATIONS  
 
e-CFR data is current as of August 14, 2020  
 
Title 7 → Subtitle B → Chapter I → Subchapter E → Part 97 
Title 7: Agriculture  
PART 97 —PLANT VARIETY AND PROTECTION  
Contents  
SCOPE  
 
§97.1  General.  
DEFINITIONS  
 
§97.2  Meaning of  words. 
ADMINISTRATION  
§97.3  Plant Variety Protection  Board. 
THE APPLICATION  
§97.5  General  requirements.  
§97.6  Application for  certificate.  
§97.7  Deposit of Voucher  Specimen.  
§97.8  Specimen  requirements.  
§97.9  Drawings and  photographs.  
§97.10  Parts of an application to be filed  together.  
§97.11  Application accepted and filed when  received.  
§97.12  Number and filing date of an  application.  
§97.13  When  the owner is deceased or legally  incapacitated.  
§97.14  Joint  applicants.  
§97.15  Assigned varieties and  certificates.  
§97.16  Amendment by  applicant.  
§97.17  Papers of completed application to be  retained.  
§97.18  Applications handled in  confidence.  
§97.19  Publication of pending  applications.  
§97.20  Abandonment for failure to respond within the time  limit. 
§97.21  Extension of time for a  reply.  
§97.22  Revival of an application abandoned for failure to  reply.  Electronic Code of Federal Regulations (eCFR)  Page 2  of 36  
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 §97.23  Voluntary withdrawal and abandonment of an  application.  
§97.24  Assignee.  
EXAMINATIONS , ALLOWANCES , AND DENIALS  
 
§97.100  Examination of  applications.  
§97.101  Notice of  allowance.  
§97.102  Amendments after  allowance.  
§97.103  Issuance of a  certificate.  
§97.104  Application or certificate  abandoned.  
§97.105  Denial of an  application.  
§97.106  Reply by applicant; request for  reconsideration.  
§97.107  Reconsideration and final  action.  
§97.108  Amendments after final action. 
CORRECTION OF ERRORS IN  CERTIFICATE  
§97.120  Corrected certificate —office  mistake.  
§97.121  Corrected certificate —applicant's  mistake. 
REISSUANCE OF  CERTIFICATE  
§97.122  Certified seed only  election. 
ASSIGNMENTS AND  RECORDING  
§97.130  Recording of  assignments.  
§97.131  Conditional  assignments.  
§97.132  Assignment records open to public  inspection. 
MARKING OR LABELING  PROVISIONS  
§97.140  After  filing.  
§97.141  After  issuance.  
§97.142  For testing or  increase.  
§97.143  Certified seed  only.  
§97.144  Additional marking or  labeling. 
ATTORNEYS AND  AGENTS  
§97.150  Right to be  represented.  
§97.151  Authorization.  
§97.152  Revocation of authorization;  withdrawal.  
§97.153  Persons  recognized.  
§97.154  Government  employees.  
§97.155  Signatures.  
§97.156  Addresses.  
§97.157  Professional  conduct.  Electronic Code of Federal Regulations (eCFR)  Page 3  of 36  
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 FEES AND CHARGES  
 
§97.175  Fees and  charges.  
§97.176  Fees payable in  advance.  
§97.177  Method of  payment.  
§97.178  Refunds.  
§97.179  Copies and certified  copies. 
AVAILABILITY OF OFFICE  RECORDS  
§97.190  When open reco rds are available. 
PROTEST  PROCEEDINGS  
§97.200  Protests to the grant of a  certificate.  
§97.201  Protest  proceedings. 
APPEAL TO THE  SECRETARY  
§97.300  Petition to the  Secretary.  
§97.301  Commissioner's  answer.  
§97.302  Decision by the  Secretary.  
§97.303  Action following the  decision.  
GENERAL PROCEDURES IN PRIORITY , PROTEST , OR APPEAL PROCEEDINGS  
 
§97.400  Extensions of  time.  
§97.401  Miscellaneous  provisions.  
§97.402  Service of  papers.  
§97.403  Manner of service. 
REVIEW  OF  DECISIONS  BY  COURT  
§97.500  Appeal to U.S. Courts. 
CEASE  AND  DESIST  PROCEEDINGS  
§97.600  Administrative provisions. 
PUBLIC USE DECLARATION  
§97.700  Public interest in wide usage. 
PUBLICATION  
§97.800  Publication of public variety  descriptions.  
§97.900  Form of official identification  symbol. 
AUTHORITY : Plant Variety Protection Act, as amended, 7 U.S.C. 2321 et seq.  Electronic Code of Federal Regulations (eCFR)  Page 4  of 36  
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 SOURCE : 58 FR 42435, Aug. 9, 1993, unless otherwise noted.  
 
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SCOPE  
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§97.1  General.  
 
Certificates of protection are issued by the Plant Variety Protection office for 
new, distinct, uniform, and stable varieties of sexually reproduced, tuber propagated, 
or asexually reproduc ed plants. Each certificate of plant variety protection certifies 
that the breeder has the right, during the term of the protection, to prevent others 
from selling the variety, offering it for sale, reproducing it, importing or exporting it, 
conditioning i t, stocking it, or using it in producing a hybrid or different variety from it, 
as provided by the Act.  
 
[85 FR 430, Jan. 6, 2020]  
 
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DEFINITIONS  
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§97.2  Meaning of  words.  
 
Words used in the regulations in this part in the singular form will import the 
plural, and vice versa, as the case may demand. The definitions of terms contained 
in the Act shall apply to such terms when used in this part. As used throughout the 
regulations in this part, unless the context requires otherwise, the  following terms 
will be construed to mean:  
 
Abandoned application. An application which has not been pursued to 
completion within the time allowed by the Office or has been voluntarily abandoned.  
 
Act. The Plant Variety Protection Act (7 U.S.C. 2321 et seq. ). 
 
Administrator. The Administrator of the Agricultural Marketing Service of the  
U.S. Department of Agriculture, or any other officer or employee of the Department 
of Agriculture to whom authority has  heretofore been delegated, or to whom 
authority may hereafter be delegated, to act in his or her stead.  
 
Applicant. The person who applied for a certificate of plant variety protection.  
 
Application. An application for plant variety protection under the A ct. Electronic Code of Federal Regulations (eCFR)  Page 5  of 36  
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 Assignee. A person to whom an owner assigns his/her rights in whole or in part.  
 
Board. The Plant Variety Protection Board appointed by the Secretary.  
 
Certificate. A certificate of plant variety protection issued under the Act by the 
Office.  
 
Certified seed. Seed which has been determined by an official seed certifying 
agency to conform to standards of genetic purity and identity as to variety, which 
standards have b een approved by the Secretary.  
 
Commissioner. The Examiner in Chief of the Office.  
 
Decision and order. Includes the Secretary's findings of fact; conclusions with 
respect to all material issues of fact and law, as well as the reasons or basis 
therefor; an d order.  
 
Examiner. An employee of the Plant Variety Protection Office who determines 
whether a certificate is entitled to be issued. The term shall, in all cases, include the 
Commissioner.  
 
Foreign application. An application for plant variety protection filed in a foreign 
country.  
 
Hearing Clerk. The Hearing Clerk, U.S. Department of Agriculture, Washington,  
DC. 
 
Hearing Officer. An Administrative Law Judge, U.S. Department of Agriculture,  
or other officer or employee of the Department of Agriculture, duly assigned to 
preside at a hearing held pursuant to the rules of this part.  
 
Office or Plant Variety Protection Office. The Plant Variety Protection Office, 
Science and Technology Programs, AMS, USDA.  
 
Owner. A breeder who developed or discovered and developed a variety for 
which plant variety protection may be applied for under the Act, or a person to whom 
the rights to such variety have been assigned or transferred.  
 
Person. An individual, partnership, corporation, association, government 
agency, or other business or governmental entity.  
 
Sale for other than seed or propagating purposes. The transfer of title to and 
possession of the seed or propagating material by the owner to a grower or o ther 
person, for reproduction for the owner, for testing, or for experimental use, and not 
for commercial sale of the seed, reproduced seed, propagating material, or 
reproduced propagating material for planting purposes.  Electronic Code of Federal Regulations (eCFR)  Page 6  of 36  
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 Secretary. The Secretary of Agriculture of the United States or any other officer 
or employee of the U.S. Department of Agriculture, to whom authority has heretofore 
been delegated, or to whom authority may hereafter be delegated to act in his or her 
stead.  
 
Seed certif ying agency. It shall be defined as set forth in the Federal Seed Act 
(53 Stat. 1275).  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995; 61 FR 248, Jan. 4,  
1996; 70 FR 28785, May 19, 2005; 85 FR 430, Jan. 6, 2020]  
 
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ADMINISTRATION  
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§97.3  Plant Variety Protection  Board.  
 
(a) The Plant Variety Protection Board shall consist of 14 members appointed 
for a 2 -year term. The Board shall be appointed every 2 years and shall consist of 
individual s who are experts in various areas of varietal development. The 
membership of the Board, which shall include farmer representation, shall be  drawn 
approximately equally from the private or seed industry sector and from the 
government or public sector. No m ember shall be eligible to act on any matter 
involving any appeal or questions under section 44 of the Act, in which the member 
or his or her employer has a direct financial  interest.  
 
(b) The functions of the Board are  to: 
 
(1) Advise the Secretary concerning ado ption of rules and regulations  to 
facilitate the proper administration of the  Act; 
 
(2) Make advisory decisions on all appeals from the examiner or  Commissioner;  
 
(3) Advise the Secretary on the declaration of a protected variety open to use  in 
the public interest;  and 
 
(4) Advise the Secretary on any other matters under the regulations in this  part. 
 
(c) The proceedings of the Board shall be conducted in accordance with the 
Federal  Advisory  Committee  Act, Administrative  Regulations  of the U.S. Department 
of Agriculture (7 CFR part 25), and such additional operating procedures as are 
adopted by members of t he Board.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 61 FR 248, Jan. 4, 1996]  
 
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 THE APPLICATION  
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§97.5  General  requirements.  
 
(a) Protection under the Act shall be afforded only as  follows:  
 
(1) Nationals and residents of the United States shall be eligible to receive all of 
the protection under the  Act. 
 
(2) Nationals and residents of Member States of the International Union for  the 
Protection of New Varieties of Plants (including states which are me mbers of an 
intergovernmental organization which is a UPOV member) shall be eligible to 
receive the same protection under the Act as is provided to nationals of the United 
States.  
 
(3) Persons who are not entitled to protection under paragraph (a)(1) or (2) of  
this section, and who are nationals of a foreign state which is not a member of the 
International Union for the Protection of New Varieties of Plants, shall be entitled to 
only so much of the protection provided under the Act, as is afforded by such  foreign 
state to nationals of the United States, for the same genus and species under the 
laws of such foreign state in effect at the time that the application for protection 
under the Act is filed, except where further protection under the Act must be 
provided  in order to avoid the violation of a treaty to which the United States is a 
party.  
 
(b) Applications for certificates shall be made to the Plant Variety Protection 
Office. An application shall consist  of: 
 
(1) A complete d application form, except that the section specifying that seed  of 
the variety shall be sold by variety name only, as a class of certified seed, need not 
be completed at the time of  application.  
 
(2) A completed set of the exhibits, as specified in the applic ation form, unless 
the examiner waives submission of certain exhibits as unnecessary, based on  other 
claims and evidence presented in connection with the  application.  
 
(3) Language and legibility: (i) Applications and exhibits must be in the  English 
language a nd legibly written, typed or  printed.  
 
(ii) Any interlineation, erasure, cancellation, or other alteration must be made in 
permanent ink before the application is signed and shall be clearly initialed and 
dated by the applicant to indicate knowledge of suc h fact at the time of signing.  
 
(4) To determine the extent of reciprocity of the protection to be provided  under 
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 under the provisions of paragraph (a)(3) of this section shall, upon request1, furnish 
the Plant Variety Protection Office with a copy of the current plant variety protection 
laws and regulations for the country of which the applicant is a national, and an  
accurate English translation of such laws and regulations.  
 
1Copies and translations of foreign laws and regulations will be requested only if they are not in 
the files of the Plant Variety Protection Office. Applicants may learn whether such a request will be 
made by writing to the address given in paragraph (c) of  this section.  
 
(c) Application and exhibit forms shall be issued by the Commissioner. (Copies 
of the forms may be obtained from the Plant Variety Protection Office by sending  an 
email request to PVPOmail@usda.gov or do wnloading forms from the PVPO 
website  (https://www.ams.usda.gov/PVPO ). 
 
(d) Effective the date of these regulations and rules of practice, the signature of 
the applicant, or his or her agent or attorney on any affi davit or other statement filed 
pursuant to these regulations and rules constitutes a certification by the applicant. 
The signature  certifies  that all information  relied  on in any affidavit  or statement  filed 
in the course of the proceeding is knowingly cor rect and false claims have not been 
made to  mislead.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995; 61 FR 248, Jan. 4,  
1996; 70 FR 28785, May 19, 2005; 85 FR 430, Jan. 6, 2020]  
 
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§97.6  Application for  certificate.  
 
(a) An application for a plant variety protection certificate shall be signed by,  or 
on behalf, of the  applicant.  
 
(b) The application shall state the full name, including the full first name and the 
middle initial or name, if any, and the capacity of the person executing  it. 
 
(c) The fees for filing an application, examination, and certificate issuance  shall 
be submitted with  the application in accordance with §§97.175 through  97.178.  
 
(d) The applicant shall submit with the  application:  
 
(1) A declaration that at least 3,000 seeds of the viable basic seed required to 
reproduce the variety will be deposited in a public depository appr oved by the 
Commissioner and will be maintained for the duration of the certificate;  or 
 
(2) With the application for a tuber propagated variety, a declaration that  a 
viable cell culture will be deposited in a public depository approved by the 
Commissioner and  will be maintained for the duration of the certificate;  or Electronic Code of Federal Regulations (eCFR)  Page 9  of 36  
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 (3) With the application for a hybrid from self -incompatible parents, a 
declaration  that a plot of vegetative  material  for each  parent  will be established  in a 
public depository approved by the Commissioner and will be maintained for the 
duration of the certificate,  or 
 
(4) Except as provided in §97.7(d)(3), with the application for an asexually 
propagated  variety,  a declaration  that a deposit  of propagating  materi al in a public 
depository approved by the Commissioner will be made and maintained for the 
duration of the  certificate.  
 
[58 FR 42435,  Aug. 9, 1993,  as amended  at 60 FR 17189,  Apr. 4, 1995;  61 FR 248, Jan. 4, 
1996;  70 FR 28785,  May 19, 2005;  70 FR 54611,  Sept.  19, 2005;  85 FR 430, Jan. 6, 2020]  
 
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§97.7  Deposit of Voucher  Specimen.  
 
(a) Voucher specimen types. As regards the deposit of voucher specimen 
material for purposes of plant variety protection applications under 7 U.S.C. 2321 et 
seq., the term voucher specimen shall include material that is capable of self - 
replication either directly or indirectly. Repr esentative examples include seeds,  plant 
tissue cells, cell lines, and plots of vegetative material of self -incompatible parental 
lines of hybrids. Seed samples should not be treated with chemicals or  coatings.  
 
(b) Need to make a deposit. Except as provided in (d)(3), applications for plant 
variety protection require deposit of a voucher specimen of the variety. The deposit 
shall be acceptable if made in accordance with these regulations. Sample  packages 
shall meet t he packaging and deposit requirements of the depository. Samples and 
correspondence about samples shall be identified, minimally,  by: 
 
(1) The application number assigned by the  Office;  
 
(2) The crop kind, genus and species, and variety denomination;  and 
 
(3) The name  and address of the  depositor.  
 
(c) Acceptable depository. A deposit shall be recognized for the purposes  of 
these regulations if made  in: 
 
(1) The National Center for Genetic Resources Preservation, ARS, USDA,  1111 
South Mason Street, Fort Collins, CO 80521 -4500,  or 
 
(2) Any other depository recognized to be suitable by the Office. Suitability will 
be determined by the Commissioner on the basis of the administrative and  technical 
competence, and agreement of the depository to comply with the terms and 
conditions appli cable to deposits for plant variety protection purposes.  The Electronic Code of Federal Regulations (eCFR)  Page 10  of 
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 Com missioner may seek the advice of impartial consultants on the suitability of a 
depository. The depository must:  
 
(i) Have a continuous  existence;  
 
(ii) Exist independent of the control of the  depositor;  
 
(iii) Possess  the staff and facilities  sufficient  to examine  the viability  and quantity 
of a deposit, and store the deposit in a manner which ensures that it is kept viable 
and uncontaminated;  
 
(iv) Provide for sufficient safety measures to minimize the risk of  losing 
biological material deposited with  it; 
 
(v) Be impartial and  objective;  
 
(vi) Refrain from distributing samples while the application is being examined 
and during  the term of protection  but, after control  of the sample  is transferred  by the 
Office to the depository, furnish samples of the deposited material in an expeditious 
and proper  manner;  
 
(vii) Have the capability to destroy samples or return samples to the Office 
when requested by the Office;  and 
 
(viii) Promptly notify the Office of low viability or low quantity of the  sample.  
 
(3) A depository seeking status under paragraph (c)(2) of this section  must 
direct a communication to the Commissioner which  shall:  
 
(i) Indicate the name and address of the depository to which the  communication 
relates;  
 
(ii) Contain detailed information as to the capacity of the depository to comply 
with the requirements  of paragraph  (c)(2)  of this section,  including  information  on its 
legal status, scientific standing, staff, and  facilities;  
 
(iii) Indicate that the depository inte nds to be available, for the purposes of 
deposit, to any depositor under these same  conditions;  
 
(iv) Where the depository intends to accept for deposit only certain kinds  of 
biological material, specify such kinds;  and 
 
(v) Indicate the amount of any fees that the  depository will, upon acquiring  the 
status of suitable depository under paragraph (c)(2) of this section, charge for 
storage, viability statements and furnishings of samples of the  deposit.  Electronic Code of Federal Regulations (eCFR)  Page 11  of 
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 (4) A depository having status under paragraph (c)(2) of this section limited to 
certain kinds of biological material may extend such status to additional kinds of 
biological material by directing a communication to the Commissioner in  accordance 
with paragrap h (c)(3) of this section. If a previous communication under paragraph 
(c)(3) of this section is of record, items in common with the previous communication 
may be incorporated by  reference.  
 
(5) Once a depository is recognized to be suitable by the Commissioner  or has 
defaulted or discontinued its performance under this section, notice thereof will be 
published on the Plant Variety Protection Office website 
(https://www.ams.usda.gov/PVPO ). 
 
(d) Time of making an original  deposit. An original deposit of materials for seed - 
reproduced plants shall be made within three months of the filing date of the 
application or prior to issuance of the certificate, whichever occurs first. An original 
deposit of materials for tuber -propa gated plants or asexually reproduced plants  shall 
be made within three months from the notice of certificate issuance date. A waiver 
from these time requirements may be granted for good cause, such as delays in 
obtaining a phytosanitary certificate for the  importation of voucher sample materials. 
A delay waiver may also be granted if the repository determines that it is technically 
infeasible to deposit propagating materials for certain asexually reproduced  plants.  
 
(1) When the original deposit is made, the applicant must promptly submit a 
statement from a person in a position to corroborate the fact, stating that the 
voucher  specimen  material  which  is deposited  is the variety  specifically  identified  in 
the application a s filed. Such statement must be filed in the application and must 
contain the identifying information listed in paragraph (b) of this section  and: 
 
(i) The name and address of the  depository;  
 
(ii) The date of  deposit;  
 
(iii) The accession number given by the depository;  and 
 
(iv) A statement that the deposit is capable of  reproduction.  
 
(2) The following conditions apply to delay waivers granted due to  technical 
difficulties with depositing propagating material for asexually reproduced  plants:  
 
(i) The applicant is required to make a declaration that the propagating  material 
will be maintained at a specific physical location, subject to Plant Variety Protection 
Office inspection when requested;  and 
 
(ii) The applicant is required to make a declaration tha t propagating material  will 
be provided within three months of a request by the Plant Variety Protection Office. 
Failure to provide propagating material as requested shall result in the certificate 
being regarded as  abandoned.  Electronic Code of Federal Regulations (eCFR)  Page 12  of 
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 (iii) The dela y waiver is effective until the Plant Variety Protection Office notifies 
the applicant  that the technical  infeasibility  has been  resolved.  Upon  that notification, 
the applicant must provide a deposit within three months. Failure to provide a 
deposit shall result in the certificate being regarded as  abandoned.  
 
(3) Original deposits of propagating material for asexually reproduced varieties 
are not required  for applications  submitted  between  January  6, 2020,  and January  6, 
2023; provided: That the applicant is required to make the declarations described in 
paragraphs (d)(2)(i) and (ii) of this  section.  
 
(e) Replacement or supplement of deposit. If the depository possessing a 
deposit determines either that the sample viability is low or that the samp le quantity 
is low, and if this finding is made during the pendency of an application or during the 
term of protection of the certificate, the Office shall notify the depositor of the need 
for making a replacement or supplemental deposit. Such deposits wil l be governed 
by the same considerations governing the need for making an original deposit  under 
the provisions set forth in §97.7(d). Notification to the Office concerning deposit of 
the replacement or supplemental sample shall contain a statement from a person in 
a position to corroborate the fact, stating that the replacement or supplemental 
deposit is of a biological material which is identical to that originally  deposited.  
 
(f) Term of deposit. A voucher specimen deposit made in support of an 
application f or plant variety protection shall be made for a term of at least  twenty  
(20) years. In any case, samples must be stored under agreements that would make 
them available to the Office during the enforceable life of the certificate for which the 
deposit was made.  
 
(g) Viability of deposit. A deposit of biological material that is cap able of self - 
replication either directly or indirectly must be viable at the time of deposit and 
during  the term of deposit.  Viability  may be tested  by the depository  periodically.  The 
test must conclude only that the deposited material is capable of repr oduction. No 
evidence necessarily is required regarding the ability of the deposited material to 
perform any function described in the application. If a viability test indicates that the 
deposit is not viable upon receipt or that the quantity of material i s insufficient, the 
examiner shall proceed as if no deposit was made. The examiner will accept the 
conclusion set forth in a viability statement issued by a depository recognized under 
paragraph  97.7(c).  
 
(h) Furnishing of samples. A deposit must be made under  conditions  that 
assure  that: 
 
(1) Public access to the deposit will not be available during pendency of  the 
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 (2) All restrictions on the availability to the public of the deposited material  will 
be irrevocably removed upon the abandonment, cancellation, expiration, or 
withdrawal of the  certificate.  
 
(i) Examination procedures. The examiner shall determine, prior to issuance of 
the certificate, in each application if a voucher sample deposit actually made is 
acceptable for plant variety protection purposes.  
 
[70 FR 546 11, Sept. 16, 2005, as amended at 85 FR 430, Jan. 6, 2020]  
 
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§97.8  Specimen  requirements.  
 
(a) The applicant may be required by the examiner to furnish representative 
specimens o f the variety, or its flower, fruit, or seeds, in a quantity and at a specified 
stage of growth, as may be necessary to verify the statements in the application. 
Such specimens shall be packed and forwarded in conformity with instructions 
furnished by the examiner. If the applicant requests the examiner to inspect plants  in 
the field before a final decision is made, all such inspection costs shall be borne by 
the applicant by payment of fees sufficient to reimburse the Office for all costs, 
including travel , per diem or subsistence, and  salary.  
 
(b) Plant specimens submitted in support of an application shall not be  removed 
from the Office except by an employee of the Office or other person authorized by 
the Secretary.  
 
(c) Plant specimens submitted to the Office sh all, except as provided below, 
and upon request, be returned to the applicant at his or her expense after the 
specimens have served their intended purpose. The Commissioner, upon a  finding 
of good cause, may require that certain specimens be retained in th e Office for 
indefinite periods of time. Specimens which are not returned or not retained as 
provided above shall be  destroyed.  
 
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§97.9  Drawings and  photographs.  
 
(a) Drawings or photographs submitted with an application shall disclose  the 
distinctive characteristics of the  variety.  
 
(b) Drawings or photographs shall be in color when color is a distinguishing 
characteristic of the variety, and the color shall be described by use of Nickerson's 
color fan, the Munsell Book of Color, the Royal Horticultural Society Colour Chart,  or 
other reco gnized color  chart.  Electronic Code of Federal Regulations (eCFR)  Page 14  of 
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 (c) Drawings shall be sent flat, or may be sent in a suitable mailing tube or  by 
email in high resolution format, in accordance with instructions furnished by the 
Commissioner.  
 
(d) Drawings or photographs submitted with an  application shall be retained by 
the Office as part of the application  file. 
 
[58 FR 42435, Aug. 9, 1993, as amended at 85 FR 431, Jan. 6, 2020]  
 
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§97.10  Parts of an application to be filed  together.  
 
All parts of an application, including exhibits, should be submitted to the Office 
together, otherwise, each part shall be accurately and clearly referenced to the 
application.  
 
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§97.11  Application accepted and filed when  received.  
 
(a) An application, if materially complete when initially submitted, shall  be 
accepted and filed to await  examination.  
 
(b) If any part of an application is so incomplete, or so defective that it cannot 
be handled as a completed application for examination, as determined by the 
Commissioner, the applicant will be notified. The application will be held a  maximum 
of 3 months for completion. Applications not completed at the end of the prescribed 
period will b e considered abandoned. The application fee in such cases will not be 
refunded.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]  
 
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§97.12  Number and filing date of an  application.  
 
(a) Applications shall be numbered and dated in sequence in the order  received 
by the Office. Applicants will be informed in writing, by mail or email, as soon as 
practicable of the number and effective filing date of the  application.  
 
(b) An applicant may claim the benefit of the filing date of a prior foreign 
application in ac cordance with section 55 of the Act. A certified copy of the foreign 
application shall be filed upon request made by the examiner. If a foreign application 
is not in the English language, an English translation, certified as accurate by a 
sworn or official  translator, shall be submitted with the  application.  
 
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§97.13  When the owner is dece ased or legally  incapacitated.  
 
In case of the death of the owner or if the owner is legally incapacitated, the 
legal representative (executor, administrator, or guardian) or heir or assignee of the 
deceased owner may sign as the applicant. If an applicant dies between the filing of 
his or her application and the granting of a certificate thereon, the certificate may be 
issued to the legal representative, heir, or assignee, upon proper intervention.  
 
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§97.1 4 Joint  applicants.  
 
(a) Joint owners shall file a joint application by signing as joint  applicants.  
 
(b) If an application for certificate is made by two or more persons as joint 
owners, when they were not in fact joint owners, the application shall be  amended 
prior to issuance of a certificate by filing a corrected application, together with a 
written explanation signed by the original applicants. Such statement shall also  be 
signed by the assignee, if  any. 
 
(c) If an application has been made by less than all the actual joint owners, the 
application shall be amended by filing a corrected application, together with a  written 
explanation, signed by all of the joint owners. Such statement shall also be signed 
by the assignee, if  any. 
 
(d) If a joint owner refuses to join in an application or cannot be found after 
diligent  effort,  the remaining  owner  may file an application  on behalf  of him or herself 
and the missing owner. Such application shall be accompanied by a written 
explanation and shall state the last known  address of the missing owner. Notice of 
the filing of the application shall be forwarded by the Office to the missing owner at 
the last known address. If such notice is returned to the Office undelivered, or if the 
address of the missing owner is unknown,  notice of the filing of the application shall 
be published once on the Plant Variety Protection Office website 
(https://www.ams.usda.gov/PVPO ). Prior to the issuance of the certificate, a missing 
owner may joi n in an application by filing a written explanation. A certificate obtained 
by fewer than all of the joint owners under this paragraph conveys the same rights 
and privileges to said owners as though all of the original owners had joined in an 
application.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 85 FR 431, Jan. 6, 2020]  
 
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§97.15  Assigned varieties and  certificates.  Electronic Code of Federal Regulations (eCFR)  Page 16  of 
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 In case the whole or a part interest in a variety is assigned, the application shall 
be made by the owner or one of the persons identified in §97.13. However, the 
certificate may be issued to the assignee, or jointly to the owner and the assignee, 
when a p art interest in a variety is assigned.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]  
 
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§97.16  Amendment by  applicant.  
 
An application may be amended before or after the first examination and action 
by the Office, after the second or subsequent examination or reconsideration as 
specified in §97.107, or when and as specifically required by the examiner. Such 
amendment may in clude a specification that seed of the variety be sold by variety 
name only as a class of certified seed, if not previously specified or if previously 
declined. Once an affirmative specification is made, no amendment to reverse such 
a specification will be  permitted unless the variety has not been sold and labeled or 
publication made in any manner that the variety is to be sold by variety name, only 
as a class of certified seed.  
 
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§97.17  Papers of completed application to be  retained.  
 
The papers submitted with a completed application shall be retained by the 
Office except as provided in §97.23(c). After issuance of a certificate of protection 
the Office will furnish copies of the application and related papers to any person 
upon payment of the specified fee.  
 
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§97.18  Applications handled in  confidence.  
 
(a) Pending applications shall be handled in confidence. Except as provided 
below, no information may be given by the Office respecting the filing of an 
application, the pendency of any particular application, or the subject matter of any 
particular applicatio n. Also, nor will access be given to or copies furnished of any 
pending application or papers relating thereto, without written authority of the 
applicant, or his or her assignee or attorney or agent. Exceptions to the above may 
be made by the Commissioner  in accordance with 5 U.S.C. 552 and §1.4 of this title, 
and upon a finding that such action is necessary to the proper conduct of the affairs 
of the Office, or to carry out the provisions of any Act of Congress, or as provided in 
sections 56 or 57 of the Act and  §97.19.  
 
(b) Abandoned applications shall not be open to public inspection. However,  if 
an abandoned application is directly referred to in an issued certificate and  is Electronic Code of Federal Regulations (eCFR)  Page 17  of 
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 available, it may be inspected or copies obtained by any person on written request, 
and with written authority received from the applicant. Abandoned applications  shall 
not be returned.  
 
(c) Decisions of the Commissioner on abandoned applications not otherwise  
open to public inspection (see paragraph (b) of this section) may be published or 
made available for publication at the Commissioner's discretion. When it is  proposed 
to release such a decision, the applicant shall be notified directly or through the 
attorney or agent of record, and a time, not less than 30 days, shall be set for 
presenting  objections.  
 
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§97.19 Publication of pending applications.  
 
Information relating to pe nding applications shall be published periodically as 
determined by the Commissioner to be necessary in the public interest. With respect 
to each application, the Plant Variety Protection Office website 
(https://w ww.ams.usda.gov/PVPO ) shall show:  
 
(a) Application number and date of  filing;  
 
(b) The name of the variety or temporary  designation;  
 
(c) The name of the crop;  and 
 
(d) Whether the applicant specified that the variety is to be sold by variety  name 
only as a class of certified seed, together with a limitation in the number of 
generations that it can be  certified.  
 
Additional information, such as the name and address of the  applicant or a brief 
description of the distinctive features of the variety, may be published only upon 
request or approval received from the applicant, at the time the application is filed or 
at any time before the notice of allowance of a certificate is  issued.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995; 61 FR 248, Jan. 4,  
1996; 85 FR 431, Jan. 6, 2020]  
 
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§97.20  Abandonment for failure to respond w ithin the time  limit.  
 
(a) Except as otherwise provided in § 97.104, if an applicant fails to advance 
actively his or her application within 30 days after the date when the last request  for 
action was mailed to the applicant by the Office, or within such longer time as may 
be fixed by the Commissioner, the applicati on shall be deemed abandoned. The 
filing and examination fees in such cases will not be  refunded.  Electronic Code of Federal Regulations (eCFR)  Page 18  of 
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 (b) The submission of an amendment to the application, not responsive to the 
last request by the Office for action, and any proceedings relative thereto, shall  not 
operate to save the application from  abandonment.  
 
(c) When the appli cant makes a bona fide attempt to advance the application, 
and is in substantial compliance with the request for action, but has inadvertently 
failed to comply with some procedural requirement, opportunity to comply with the 
procedural requirement shall be  given to the applicant before the application shall be 
deemed abandoned. The Commissioner may set a period, not less than 30 days, to 
correct any deficiency in the  application.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995; 85 FR 43 1, Jan. 6,  
2020]  
 
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§97.21  Extension of time for a  reply.  
 
The time for reply by an applicant to a request by the Office for certain action, 
shall be extended by the Commissioner only for good and sufficient cause, and for 
a specified reasonable time. A request for extension and appropriate fee shall be 
filed on or before the specified time for reply. In no case shall the mere filing of a 
request for extension require the granting of an extension or state the time for reply.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 61 FR 248, Jan. 4, 1996]  
 
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§97.22  Revival of an application abandoned for failure to  reply.  
 
An application abandoned for failure on the part of the applicant to advance 
actively his or her application to its completion, in accordan ce with the regulations in 
this part, may be revived as a pending application within 3 months of such 
abandonment, upon a finding by the Commissioner that the failure was inadvertent 
or unavoidable and without fraudulent intent. A request to revive an aban doned 
application shall be accompanied by a written statement showing the cause of the 
failure to respond, a response to the last request for action, and by the specified fee.  
 
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§97.23  Voluntary withdrawal and abandonment of an  application.  
 
(a) An application may be voluntarily withdrawn or abandoned by submitting to 
the Office a written request for withdrawal or abandonment, signed by the  applicant 
or his or her attorney or agent of record, if any, or the assignee of record, if  any. Electronic Code of Federal Regulations (eCFR)  Page 19  of 
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 (b) An application which has been voluntarily abandoned may be revived within 
3 months of such abandonment by the payment of the prescr ibed fee and a  showing 
that the abandonment occurred without fraudulent  intent.  
 
(c) An original application which has been voluntarily withdrawn shall be 
returned to the applicant and may be reconsidered only by refiling and payment  of 
new filing and examinat ion fees.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995; 85 FR 431, Jan. 6,  
2020]  
 
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§97.24  Assignee.  
 
The assignee of record of the entire interest in an application is entitled to 
advance actively or abandon the application to the exclusion of the applicant.  
 
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EXAMINATIONS , ALLOWANCES , AND DENIALS  
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§97.100  Examination of  applications.  
 
(a) [Reserved]  
 
(b) Examinatio ns of applications shall include a review of all available 
documents, publications, or other material relating to varieties of the species 
involved in the application, except that if there are fundamental defects in the 
application, as determined by the ex aminer, the examination may be limited to an 
identification of such defects and notification to the applicant of needed corrective 
action. However, matters of form or procedure need not, but may, be raised by an 
examiner until a variety is found to be new,  distinct, uniform, and stable and  entitled 
to protection.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]  
 
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§97.101  Notice of  allowance.  
 
If, on examination, PVPO determines that the applicant is entitled to a 
certificate, a notice of allowance shall be sent to the applicant or his or her attorney 
or agent of re cord, if any, requesting verification of the variety name and of the 
name of the owner. The notice will also provide an opportunity for withdrawal of the  Electronic Code of Federal Regulations (eCFR)  Page 20  of 
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 application before certificate issuance. The applicant must respond within 30 days 
from the date of the notice of allowance. Thereafter, a fee for delayed response shall 
be charged as specified in §97.175(f).  
 
[85 FR 431, Jan. 6, 2020]  
 
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§97.102  Amendments after  allowance.  
 
Amendments to the application, after the notice of allowance is issued, may be 
made, if the certificate has not been issued.  
 
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§97.103  Issuance of a  certificate.  
 
(a) After the notice of allowance has been issued and the applicant has clearly 
specified whether or not the variety shall be sold by variety name only as a class of 
certified seed, the certificate shall be promptly issued. Once an election is made  and 
a certi ficate issued specifying that seed of the variety shall be sold by variety name 
only as a class of certified seed, no waiver of such rights shall be permitted by 
amendment of the  certificate.  
 
(b) The certificate shall be delivered or mailed to the owner. 
[58 FR 42435, Aug. 9, 1993, as amended at 85 FR 432, Jan.  6, 2020]  
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§97.104 Application or certificate abandoned.  
 
(a) Upon request by the Office, the owner shall replenish the seed or 
propagating material of the variety and shall pay the handling fee for replenishment. 
Samples of seed or propagating material related to abandoned applications or 
certificates will be retain ed or destroyed by the depository. Failure to replenish seed 
or propagating material within 3 months from the date of request shall result in the 
certificate being regarded as abandoned. No sooner than 1 year after the date of 
such request, notices of aban doned certificates shall be published on the Plant 
Variety Protection Office website ( https://www.ams.usda.gov/PVPO ), indicating that 
the variety has become open for use by the public and, if previously specifi ed to be 
sold by variety name as “certified seed only,” that such restriction no longer  applies.  
 
(b) If the seed or propagating material is submitted within 9 months of the final 
due date, it may be accepted by the Commissioner as though no abandonment  had 
occurred. For good cause, the Commissioner may extend for a reasonable time  the Electronic Code of Federal Regulations (eCFR)  Page 21  of 
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 period for submitting seed or propagating material before declaring the certificate 
abandoned.  
 
(c) A certificate may be voluntarily abandoned by the applicant or his or her 
attorney or agent of record or the assignee of record by notifying the Commissioner 
in writing. Upon receipt of such notice, the Commissioner shall publish a notice on 
the Plant Vari ety Protection Office website ( https://www.ams.usda.gov/PVPO ) that 
the variety has become open for use by the public, and if previously specified to be 
sold by variety  name  as “certified  seed  only,”  that such  restriction  no longer  applies.  
 
[85 FR 432, Jan. 6, 2020]  
 
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§97.105  Denial of an  application.  
 
(a) If the variety is found by the examiner to be not new, distinct, uniform,  and 
stable, the application shall be  denied.  
 
(b) In denying an application, the examiner shall cite  the reasons the application 
was denied. When a reason involves the citation of certain material which is 
complex, the particular part of the material relied on shall be designated as nearly  as 
practicable. The pertinence of each reason, if not obvious, sh all be clearly 
explained.  
 
(c) If prior domestic certificates are cited as a reason for denial, their numbers 
and dates and the names of the owners shall be stated. If prior foreign certificates or 
rights are cited, as a reason for denial, their nationality or  country, numbers and 
dates, and the names of the owners shall be stated, and such other data shall be 
furnished, as may be necessary to enable the applicant to identify the cited 
certificates or  rights.  
 
(d) If printed publications are cited as a reason for denial, the author (if any), 
title, date, pages or plates, and places of publication, or place where a copy can  be 
found shall be  given.  
 
(e) When a denial is based on facts known to the examiner, and upon requ est 
by the applicant, the denial shall be supported by the affidavit of the examiner.  Such 
affidavit shall be subject to contradiction or explanation by the affidavits of the 
applicant and other persons.  
 
(f) Abandoned applications may not be cited as reasons for denial.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17189, Apr. 4, 1995]  
 
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 §97.106  Reply by applicant; request for  reconsideration.  
 
(a) After an adverse action by the examiner, the applicant may respond  to the 
denial and may request a reconsideration, with or without amendment of his or her 
application.  Any amendment  shall be responsive  to the reason  or reasons  for denial 
specified by the  examiner.  
 
(b) To obtain a reconsideration, the applicant shall submit  a request for 
reconsideration in writing and shall specifically point out the alleged errors in the 
examiner's action. The applicant shall respond to each reason cited by the  examiner 
as the basis for the adverse action. A request for reconsideration of a  denial based 
on a faulty form or procedure may be held in abeyance by the Commissioner until 
the question of the variety being new, distinct, uniform, and stable is  settled.  
 
(c) An applicant's request for a reconsideration must be a bona fide attempt to 
adva nce the case to final action. A general allegation by the applicant that certain 
language which he or she cites in the application or amendment thereto establishes 
the variety is new, distinct, uniform, and stable without specifically explaining how 
the la nguage distinguishes the alleged new, distinct, uniform, and stable variety  from 
the material cited by the examiner shall not be grounds for a  reconsideration.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17190, Apr. 4, 1995]  
 
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§97.107  Reconsideration and final  action.  
 
If, upon reconsideration, the application is denied by the Commissioner, the 
applicant shall be notified by the Commissioner of th e reason or reasons for denial 
in the same manner as after the first examination. Any such denial shall be final 
unless appealed by the applicant to the Secretary. If the denial is sustained by the 
Secretary on appeal, the denial shall be final subject to appeal to the courts, as 
provided in §97.500.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 70 FR 28785, May 19, 2005]  
 
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§97.108  Amendments after final  action.  
 
(a) After a final denial by the Commissioner, amendments to the application 
may be made to overcome the reason or reasons for denial. The acceptance or 
refusal of any su ch amendment by the Office and any proceedings relative  thereto 
shall not relieve the applicant from the time limit set for an appeal or an 
abandonment for failure to  reply.  Electronic Code of Federal Regulations (eCFR)  Page 23  of 
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 (b) No amendment of the application can be made in an appeal  proceeding. 
After decision on appeal, amendments can only be made in accordance with  the 
decision.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 70 FR 28785, May 19, 2005]  
 
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CORRECTION OF ERRORS IN CERTIFICATE  
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§97.120  Corrected certificate —office  mistake.  
 
When a certificate is incorrect because of a mistake in the Office, the 
Commissioner may i ssue a corrected certificate stating the fact and nature of such 
mistake, under seal, without charge, to be issued to the owner and recorded in the 
records at the Office.  
 
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§97.121  Corrected certificate —applicant's  mistake.  
 
When a certificate is incorrect because of a mistake by the applicant of a 
clerical or typographical nature, or of minor character, or in the description of the 
variety (including, but not limited to, the use of a misleading variety name or a name 
assigned to a different variety of the same species), and the mistake is found by the 
Commissioner to have occurred in good faith and does not require a further 
examination, the Commissioner may, upon payment of t he required fee and return 
of the original certificate, correct the certificate by issuing a corrected certificate, in 
accordance with section 85 of the Act. If the mistake requires a reexamination, a 
correction of the certificate shall be dependent on the  results of the reexamination.  
 
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REISSUANCE OF CERTIFICATE  
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§97.122  Certified seed only  election.  
 
When an owner elects after a certificate is issued to sell the protected variety by 
variety name only as a class of certified seed, a new certificate may be issued up on 
return of the original certificate to the Office and payment of the appropriate fee.  
 
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 ASSIGNMENTS AND RECORDING  
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§97.130  Recording of  assignments.  
 
(a) Any assignment of an application for a certificate, or of a certificate of plant 
variety protection, or of any interest in a variety, or any license or grant and 
conveyance o f any right to use of the variety, may be submitted for recording in  the 
Office in accordance with section 101 of the Act (7 U.S.C.  2531).  
 
(b) No instrument shall be recorded which is not in the English language or 
which does not identify the certificate or application to which it  relates.  
 
(c) An instrument relating to title of a certificate shall identify the certificate by 
number and date, the nam e of the owner, and the name of the variety as stated in 
the certificate. An instrument relating to title of an application shall identify an 
application by number and date of filing, the name of the owner, and the name of  the 
variety as stated in the  application.  
 
(d) If an assignment is executed concurrently or subsequent to the filing of  an 
application, but before its number and filing date are ascertained, the assignment 
shall identify the application by the date of the application, the name of the owner, 
and the name of the  variety.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17190, Apr. 4, 1995]  
 
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§97.131  Conditional  assignments.  
 
Assignments recorded in the Office are regarded as absolute assignments for 
Office purposes until canceled in writing by both parties to the assignment or by a 
decree of a court of competent jurisdiction. The Office shall not determine whether 
conditions p recedent to the assignment, such as the payment of money, have been 
fulfilled.  
 
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§97.132  Assignment records open to public  inspection.  
 
(a) Assignment records relating to original or amended certificates shall be 
open to public inspection and copies of any recorded document may be  obtained 
upon payment of the prescribed  fee. 
 
(b) Assignment records relating to any pending or abandoned application  shall 
not be available for inspection except to the extent that pending applications  are Electronic Code of Federal Regulations (eCFR)  Page 25  of 
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 published as provided in section 57 of the Act and §97.19, or where necessary to 
carry out the provisions of any Act of Congress. Copies of assign ment records and 
information on pending or abandoned applications shall be obtainable only upon 
written authority of the applicant or his or her assignee, or attorney or agent of 
record, or where necessary to carry out the provisions of any Act of Congress . An 
order for a copy of an assignment shall give the proper identification of the 
assignment.  
 
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MARKING OR LABELING  PROVISIONS  
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§97.140  After  filing.  
 
Upon filing an application for protection of a variety and payment of the 
prescribed fee, the owner, or his or her designee, may label the variety or  containers 
of the seed of the variety or plants produced from such seed, substantially as 
follows: “Unauth orized Propagation Prohibited —(Unauthorized Seed Multiplication 
Prohibited) —U.S. Variety Protection Applied For.” Where applicable, “PVPA 1994” 
or “PVPA 1994 —Unauthorized Sales for Reproductive Purposes Prohibited” may be 
added to the  notice.  
 
[58 FR 42435 , Aug. 9, 1993, as amended at 60 FR 17190, Apr. 4, 1995; 61 FR 248, Jan. 4,  
1996]  
 
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§97.141  After  issuance.  
 
Upon issuance of a certificate, the owner of the variety, or his  or her designee, 
may label the variety, propagating material of the variety, or containers of the seed 
of the variety or plants produced from such seed or propagating material 
substantially  as follows:  “Unauthorized  Propagation  Prohibited —(Unauthorized  Seed 
or Propagating Material Multiplication Prohibited) —U.S. Protected Variety.” Where 
applicable, “PVPA 1994” or “PVPA 1994 —Unauthorized Sales for Reproductive 
Purposes Prohibited” may be added to the  notice.  
 
[85 FR 432, Jan. 6, 2020]  
 
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§97.142  For testing or  increase.  
 
An owner who contemplates filing an app lication and releases for testing or 
increase seed of the variety or propagating material or reproducible plant material  of Electronic Code of Federal Regulations (eCFR)  Page 26  of 
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 the variety may label such plant material or containers of the seed or plant material 
substantially as follows: “Unauthorized Propagation Prohibited —For Testing (or 
Increase) Only.”  
 
[85 FR 432, Jan. 6, 2020]  
 
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§97.143  Certified seed  only.  
 
(a) Upon filing an application, or amendment thereto, specifying seed of the 
variety is to be sold by variety name only as a class of certified seed, the owner, or 
his or her designee, may labe l containers of seed of the variety substantially as 
follows: “Unauthorized Propagation Prohibited —U.S. Variety Protection Applied  for 
Specifying That Seed of This Variety Is To Be Sold By Variety Name Only as a 
Class of Certified  Seed.”  
 
(b) An owner who has received a certificate specifying that a variety is to be 
sold by variety name only, as a class of certified seed, may label containers of the 
seed of the variety substantially as follows: “Unauthorized Propagation 
Prohibited —To Be Sold By  Variety Name Only as a Class of Certified  Seed —U.S. 
Protected  Variety.”  
 
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§97.144  Additional marking or  labeling.  
 
Additional clarifying information that is not false or misleading may be used by 
the owner, in addition to the above markings or labeling.  
 
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ATTORNEYS AND AGENTS  
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§97.150  Right to be  represented.  
 
An applicant may actively advance an application or may be represented by an 
attorney or agent authorized in writing.  
 
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§97.151  Authorization.  Electronic Code of Federal Regulations (eCFR)  Page 27  of 
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 Only attorneys or agents specified by the applicant shall be allowed to inspect 
papers or take action of any kind, on behalf of the applicant, in any pending 
application or proceedings.  
 
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§97.152  Revocation of authorization;  withdrawal.  
 
An authorization of an attorney or agent may be revoked by an applicant at any 
time, and an attorney or agent may withdraw, upon application to the Commissioner. 
When the authorization is so revoked, or the attorney or agent has so withdrawn, the 
Office shall inform the interested parties and shall thereafter communicate directly 
with the applicant, or with such other attorney or agent as the applicant may appoint. 
An assignment will not of it self operate as a revocation of authorization previously 
given, but the assignee of the entire interest may revoke previous authorizations and 
be represented by an attorney or agent of his or her own selection.  
 
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§97.153  Persons  recognized.  
 
Unless specifically authorized as provided in §97.151, no person shall be 
permitted to file or advance applications before the Office on behalf of another 
person.  
 
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§97.154  Government  employees.  
 
Officers and employees of the United States who are disqualified by statute (18  
U.S.C. 203 and 205) from practicing as attorneys or agents in proceedings or other 
matters before government departments or agencies, shall not be eligible to 
represent applica nts, except officers and employees whose official duties require the 
preparation and prosecution of applications for certificates of variety protection.  
 
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§97.155  Signatures.  
 
Every document filed by an attorney or agent representing an applicant or party 
to a proceeding in the Office shall bear the signature of such attorney or agent, 
except documents which are required to be signed by the applicant or party.  
 
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§97.156  Addresses.  Electronic Code of Federal Regulations (eCFR)  Page 28  of 
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 Attorneys and agents practicing before the Plant Variety Protection Office shall 
notify the Office in writing of any change of address. The Office shall address letters 
to any person at the last address received.  
 
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§97.157  Professional  conduct.  
 
Attorneys and agents appearing before the Office shall conform to the 
standards of ethical and professional conduct, generally applicable to attorneys 
appearing before the co urts of the United States.  
 
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FEES AND CHARGES  
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§97.175  Fees and  charges.  
 
The following fees and charges apply to the services and actions specified in 
paragraphs (a) through (f) of this section:  
 
(a) Application:  
 
(1) Initial fee for filing, examination, and certificate  issuance —$5,150  
 
(2) Submission of new application data prior to issua nce of  certificate —$432  
 
(3) Granting extensions for responding to data  requests —$89 
 
(4) Refunds pursuant to §97.178 may be issued for portions of the initial 
application fee as follows: examination —$3,864, and certificate  issuance —$768.  
 
(b) Reconsideration of appli cation —$589  
 
(c) Revival of an abandoned  application —$518  
 
(d) Appeals:  
 
(1) Filing a petition for protest to  Commissioner —$4,118  
 
(2) Appeal to Secretary (refundable if appeal overturns protest  to 
Commissioner) —$4,942  
 
(e) Field inspections or other services requiring travel by a representative of  the 
Plant Variety Protection Office, made at the request of the applicant, shall be 
reimbursable in full (including travel, per diem or subsistence, salary,  and Electronic Code of Federal Regulations (eCFR)  Page 29  of 
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 administrative costs), in accordance with standardized government travel 
regulations.  
 
(f) Any other service not covered in this section, including, but not limited to, 
reproduction of records, authentication, correction, or reissuance of a certificate, 
recordation or revision of assignment, and late fees will be charged for at rates 
prescribed by the Commissioner, but in no event shall they exceed $97 per 
employee  hour.  Charges  will also be made  for materials,  space,  and administrative 
costs. 
 
[85 FR 432, Jan. 6, 2020]  
 
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§97.176  Fees payable in  advance.  
 
Fees and charges shall be paid at the time of making application or at the time 
of submitting a request for any action by the Office for which a fee or charge is 
payable and established in this part.  
 
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§97.177  Method of  payment.  
 
Payments can be submitted through the electronic Plant Variety Protection 
system or pay.gov. Checks or money orders shall be made payable to the Treasurer 
of the United States. Remittances from forei gn countries must be payable and 
immediately negotiable in the United States for the full amount of the prescribed fee. 
Money sent by mail to the Office shall be sent at the sender's risk.  
 
[85 FR 432, Jan. 6, 2020]  
 
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§97.178  Refunds.  
 
Money paid by mistake or excess payments shall be refunded, but a mere 
change of plans after the payment of money, as when a party decides to withdraw 
an application or to withdraw an appeal, shall not entitle a party to a refund.  
However, the examination fee shall be refunded if an application is voluntarily 
withdrawn or abandoned pursuant to §97.23(a) before the examination has begun. 
The certificate issua nce fee shall be refunded if an application is voluntarily 
withdrawn or abandoned after an examination has been completed and before a 
certificate has been issued. Amounts of $1 or less shall not be refunded unless 
specifically demanded.  
 
[85 FR 432, Jan. 6, 2020]  Electronic Code of Federal Regulations (eCFR)  Page 30  of 
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§97.179  Copies and certified  copies.  
 
(a) Upon request, copies of applications, certificates, or of any records, books, 
papers, drawings, or phot ographs in the custody of the Office and which are open  to 
the public, will be furnished to persons entitled thereto, upon payment of the 
prescribed  fee. 
 
(b) Upon request, copies will be authenticated by imprint of the seal of the 
Office and certified by the official, authorized by the Commissioner upon payment  of 
the prescribed  fee. 
 
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AVAILABILITY OF OFFICE  RECORDS  
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§97.190  When open records are  available.  
 
Copies of records, which are open to the public and in the custody of the Office, 
may be examined in the Office during regular business hours upon approval by the 
Commissioner.  
 
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PROTEST PROCEEDINGS  
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§97.200  Protests to the grant of a  certificate.  
 
Opposition on the part of any person to the granting of a certificate shall be 
permitted while an application is pending and for a period not to exceed 5 years 
following the issuance of a certificate.  
 
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§97.201  Protest  proceedings.  
 
(a) Opposition shall be made by submitting in writing a petition for protest 
proceedings, which petition shall be supported by affidavits and shall show the 
reason or reasons for opposing the applicati on or certificate. The petition and 
accompanying papers shall be filed in duplicate. If it appears to an examiner that a 
variety involved in a pending application or covered by a certificate may not be  or Electronic Code of Federal Regulations (eCFR)  Page 31  of 
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 may not have been entitled to  protection under the Act, a protest proceeding may be 
permitted by the Commissioner.  
 
(b) One copy of the petition and accompanying papers shall be served by  the 
Office upon the applicant or owner, or his or her attorney or agent of  record.  
 
(c) An answer, by the  applicant or owner of the certificate, or his or her 
assignee, in response to the petition, may be filed with the Commissioner within 60 
days after service of the petition, upon such person. If no answer is filed within said 
period, the Commissioner shall  decide the matter on the basis of the allegations  set 
forth in the  petition.  
 
(d) If the petition and ans wer raise any issue of fact needing proof, the 
Commissioner shall afford each of the parties a period of 60 days in which to  file 
sworn statements or affidavits in support of their respective  positions.  
 
(e) As soon as pract icable after the petition or the petition and answer are  filed, 
or after the expiration of any period for filing sworn statements or affidavits, the 
Commissioner shall issue a decision as to whether the protests are upheld or 
denied. The Commissioner may, following the protest proceeding, cancel any 
certificate issued and may grant another certificate for the same variety to a person 
who proves to the satisfaction of the Commissioner, that he or she is the breeder or 
discoverer. The decision shall be served  upon the parties in the manner provided  in 
§97.403.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17190, Apr. 4, 1995]  
 
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APPEAL TO THE  SECRETARY  
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§97.300  Petition to the  Secretary.  
 
(a) Petition may be made to the Secretary from any final action of the 
Commissioner denying an application or refusing to allow a certificate to be issued, 
or from any adverse decision of the Commissioner made under §§97.18(c),  97.107, 
97.201(e), and  97.220.  
 
(b) Any such petition shall contain a statement of the facts involved and the 
point or points to be reviewed, and the actions  requested.  
 
(c) A petition to the Secretary shall be filed in duplicate and accompanied by  the 
prescribed fee (see  §97.175).  Electronic Code of Federal Regulations (eCFR)  Page 32  of 
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 (d) Upon request, an opportunity to present data, views, and arguments orally, 
in an informal manner or in a formal hearing, shall be given to interested persons. If 
a formal hearing is requested, the proceeding shall be conducted in accor dance  with 
the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the 
Secretary Under Various Statutes set forth in §§1.130 through 1.151 of this  title. 
 
(e) Except as otherwise provided in the rules in this part, any such petition  not 
filed within 60 days from the action complained of shall be dismissed as  untimely.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 8464, Feb. 14,  1995]  
 
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§97.301  Commissioner's  answer.  
 
(a) The Commissioner may, within such time as may be directed by the 
Secretary, furnish a written statement to the Secretary in answer to the  appellant's 
petition, including suc h explanation of the reasons for the action as may be 
necessary and supplying a copy to the  appellant.  
 
(b) Within 20 days from the date of such answer, the appellant may file a  reply 
statement directed only to such new points of argument as may be raised in the 
Commissioner's  answer.  
 
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§97.302  Decision by the  Secretary.  
 
(a) The Secretary, after receiv ing the advice of the Board, may affirm or  reverse 
the decision of the Commissioner, in whole or in  part. 
 
(b) Should the decision of the Secretary include an explicit statement that a 
certificate be allowed, based on an amended application, the applicant shall have 
the right to amend  his or her application  in conformity  with such  statement  and such 
decision shall be binding on the  Commissioner.  
 
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§97.303  Action following the  decision.  
 
(a) Copies of the decision of the Secretary shall be served upon the  appellant 
and the Commissioner in the manner provided in  §97.403.  
 
(b) When an appeal petition is dismissed, or when the time for appeal to the 
courts pursuant to the Act has expired and no such appeal or civil action has been 
filed, proceedings in the appeal shall be consi dered terminated as of the dismissal 
or expiration date, except in those cases in which the nature of the decision  requires  Electronic Code of Federal Regulations (eCFR)  Page 33  of 
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 further action by the Commissioner. If the decision of the Secretary is appealed or a 
civil action has been fil ed pursuant to the Act, the decision of the Secretary will be 
stayed pending the outcome of the court appeal or civil action.  
 
[58 FR 42435, Aug. 9, 1993, as amended at 60 FR 17190, Apr. 4, 1995]  
 
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GENERAL PROCEDURES IN PRIORITY , PROTEST , OR APPEAL 
PROCEEDINGS  
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§97.400  Extensions of  time.  
 
Upon a showing of good cause, extensions of time not otherwise provided for 
may be granted by the Commissioner or, if an appeal has been filed by the 
Secretary for taking any a ction required in any priority, protest, or appeal 
proceeding.  
 
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§97.401  Miscellaneous  provisions.  
 
(a) Petitions for reconsideration or modification of the decision of the 
Commi ssioner  in priority  or protest  proceedings  shall be filed within  20 days  after the 
date of the  decision.  
 
(b) The Commissioner may consider on petition any matter involving abuse of 
discretion in the exercise of an examiner's authority, or such other matters as may 
be deemed proper to consider. Any such petition, if not filed within 20 days from  the 
decision compl ained of, may be dismissed as  untimely.  
 
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§97.402  Service of  papers.  
 
(a) Every paper required to be served on opposing parties and filed in the  Office 
in any priority, protest, or appeal proceeding, must be served by the Secretary in the 
manner provided in  §97.403.  
 
(b) The requirement in certain sections that a specified paper shall be served 
includes a requirement that all related supporting papers shall also be served.  Proof 
of such service upon other parties to the proceeding must be made before the 
supporting papers will be considered by the Commissioner or  Secretary.  
 
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 §97.403  Manner of  service.  
 
Service of any paper under this part must be on the attorney or agent of the 
party if there be such, or on the party if there is no attorney or agent, and may be 
made in any of the following ways:  
 
(a) By mailing a copy of the paper to the person served by cer tified mail,  with 
the date of the return receipt controlling the date of  service;  
 
(b) By leaving a copy at the usual place of business of the person served  with 
someone in his or her  employ;  
 
(c) When the person served has no usual place of business, by leaving a  copy 
at his or her home with a member of the family over 14 years of age and of 
discretion;  and 
 
(d) Whenever it shall be found by the Commissioner or Secretary that none  of 
the above modes of serving the paper is practicable, service may be by notice, 
published once on the Plant Variety Protection Office website 
(https://www.ams.usda.gov/PVPO ). 
 
[58 FR 42435, Aug. 9, 1993, as a mended at 85 FR 432, Jan. 6, 2020]  
 
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REVIEW OF DECISIONS BY  COURT  
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§97.500  Appeal to U.S.  Courts.  
 
Any applicant dissatisfied with the decision of the Secretary  on appeal may 
appeal to the U.S. Courts of Appeals for the Federal Circuit or institute a civil action 
in the U.S. District Court for the District of Columbia, as set forth in the Act. In such 
cases, the appellant or plaintiff shall give notice to the Sec retary, state the reasons 
for appeal or civil action, and obtain a certified copy of the record. The certified  copy 
of the record shall be forwarded to the Court by the Plant Variety Protection Office 
on order of, and at the expense of the appellant or plaintiff.  
 
[85 FR 432, Jan. 6, 2020]  
 
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CEASE AND DESIST  PROCEEDINGS  
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 §97.600  Administrative  provisions.  
 
Any proceedings instituted under section 128 of the Act for false marking shall 
be conducted in accordance with §§202.10 through 202.29 of this chapt er (rules of 
practice under the Federal Seed Act) (7 U.S.C. 1551 et seq. ), except that all 
references in those rules and regulations to “Examiner” shall be construed to be an 
Administrative Law Judge, U.S. Department of Agriculture, and not an “Examiner”  as 
defined in the regulations under the Plant Variety Protection Act.  
 
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PUBLIC USE DECLARATION  
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§97.700  Public interest in wide  usage.  
 
(a) If the Secretary has reason to believe that a protected variety should be 
declared open to use by the public in accordance with section 44 of the Act, the 
Secretary shall give the owner of the variety appropriate notice and an opportunity  to 
present views orally or in writing, with regard to the necessity for such action to be 
taken in the public  interest.  
 
(b) Upon the expiration of the period for the presentation of views by the  owner, 
as provided in paragraph (a) of this section, the Secretary shall refer the matter to 
the Plant Variety Protection Board for advice, including advice on any limitations or 
rate o f remuneration.  
 
(c) Upon receiving the advice of the Plant Variety Protection Board, the 
Secretary shall advise the owner of the variety, the members of the Plant Variety 
Protection Board, and the public, by issuance of a press release, of any decision 
based on the provisions of section 44 of the Act to declare a variety open to use  by 
the public. Any decision not to declare a variety open to use by the public will be 
transmitted only to the owner of the variety and the members of the Plant Variety 
Protection  Board.  
 
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PUBLICATION  
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§97.800  Publication of public variety  descriptions.  
 
Voluntary submissions of varietal descriptions of “public varieties”  on forms 
obtainable from the Office will be accepted for publication on the Plant Variety  Electronic Code of Federal Regulations (eCFR)  Page 36  of 
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 Protection Office website ( https://www.ams.usda.gov/PVPO ). Such publication shall 
not constitute r ecognition that the variety is, in fact, distinct, uniform, and stable.  
 
[85 FR 433, Jan. 6, 2020]  
 
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§97.900  Form of official identification  symbol.  
 
The symbol set forth in Figure 1, containing the words “Plant Variety Protection 
Office” and “U.S. Department of Agriculture,” shall be the official identification 
symbol of the Plant Variety Protection Office. This information symbol, used by the 
Plant Variety Protection Office on the seal on certificates of Plant Variety Protection, 
has been approved by the Office of Communications to be added to the USDA/AMS 
inventory of symbols. It is approved for use with AMS materials.  
 
 
View or download PDF  
 
[65 FR 47244, Aug. 2, 2000]  
 
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