### §163. Grant

In the case of a plant patent, the grant shall include the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any parts thereof, into the United States.

(July 19, 1952, ch. 950, 66 Stat. 804; Pub. L. 105–289, §3(a), Oct. 27, 1998, 112 Stat. 2781.)

#### Historical and Revision Notes

Based on Title 35, U.S.C., 1946 ed., §40, part (R.S. 4884, amended May 23, 1930, ch. 312, §1, 46 Stat. 376).

This provision is from R.S. 4884 (see section 154) amended in language.

#### **Editorial Notes**

#### Amendments

1998—Pub. L. 105–289 reenacted section catchline without change and amended text generally. Prior to amendment, text read as follows: "In the case of a plant patent the grant shall be of the right to exclude others from asexually reproducing the plant or selling or using the plant so reproduced."

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 1998 Amendment

Pub. L. 105–289, §3(b), Oct. 27, 1998, 112 Stat. 2781, provided that: "The amendment made by subsection (a) [amending this section] shall apply to any plant patent issued on or after the date of the enactment of this Act [Oct. 27, 1998]."

#### Findings and Purposes

Pub. L. 105–289, §2, Oct. 27, 1998, 112 Stat. 2780, provided that:

"(a) Findings.—The Congress makes the following findings:

"(1) The protection provided by plant patents under title 35, United States Code, dating back to 1930, has historically benefited American agriculture and horticulture and the public by providing an incentive for breeders to develop new plant varieties.

"(2) Domestic and foreign agricultural trade is rapidly expanding and is very different from the trade of the past. An unforeseen ambiguity in the provisions of title 35, United States Code, is undermining the orderly collection of royalties due breeders holding United States plant patents.

"(3) Plant parts produced from plants protected by United States plant patents are being taken from illegally reproduced plants and traded in United States markets to the detriment of plant patent holders.

"(4) Resulting lost royalty income inhibits investment in domestic research and breeding activities associated with a wide variety of crops—an area where the United States has historically enjoyed a strong international position. Such research is the foundation of a strong horticultural industry.

"(5) Infringers producing such plant parts from unauthorized plants enjoy an unfair competitive advantage over producers who pay royalties on varieties protected by United States plant patents.

"(b) Purposes.—The purposes of this Act [see section 1 of Pub. L. 105–289, set out as a Short Title of 1998 Amendments note under section 1 of this title] are—

"(1) to clearly and explicitly provide that title 35, United States Code, protects the owner of a plant patent against the unauthorized sale of plant parts taken from plants illegally reproduced;

"(2) to make the protections provided under such title more consistent with those provided breeders of sexually reproduced plants under the Plant Variety Protection Act (7 U.S.C. 2321 et seq.), as amended by the Plant Variety Protection Act Amendments of 1994 (Public Law 103–349); and

"(3) to strengthen the ability of United States plant patent holders to enforce their patent rights with regard to importation of plant parts produced from plants protected by United States plant patents, which are propagated without the authorization of the patent holder."