Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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USDA Plant Variety Protection Office (PVPO) 

Randolph 1A / 1B Room of the Hyatt Regency Chicago Hotel 

151 East Wacker Drive 

Chicago, IL 

Board Members attending (with affiliation): 

Charles Brown; Brownseed Genetics, LLC 

Jianli Chen; University of Idaho 

Joon Cho; University of North Carolina at Chapel Hill 

Danielle Conway; University of Maine 

Eloy Corona; Bayer Crop Science LP 

Emily Dierking; Indiana Crop Improvement Association 

John Duesing; DuPont Pioneer 

Elizabeth Lee; University of Guelph 

Stevan Madjarac; Monsanto Company 

Jose Re; RiceTec, Inc. 

Wendell Shauman; Shauman Farms 

Bernice Slutsky; American Seed Trade Association (ASTA) 

Katherine White; Wayne State University 

Alternate: James Sutton, Georgia Department of Agriculture 

Absent: 

Jose Costa; USDA/ARS 

Alternate: David Burns, Burns' Farms, Inc. 

USDA staff: 

Ruihong Guo, Deputy Administrator, USDA/Agricultural Marketing Service (AMS) 

Science and Technology Program 

Paul Zankowski; Commissioner PVPO 

Jeff Haynes, Deputy Commissioner, PVPO 

Others Attending: 

Fred Achard, Monsanto 

Marymar Butruille, Monsanto 

Peter Button, International Union for the Protection of New Varieties of Plants 

(UPOV) 

Amy Curtis, Monsanto 

Kees van Ettekoven, Naktuinbouw Variety Testing Department 

Mark Massoudi, AgBiotech 

Minna Moezie, US Patent and Trademark Office (PTO) 

Barry Nelson, DuPont Pioneer 

Paul Nelson, Monsanto 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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Call to Order, Introductions, and Opening Remarks 

The Board and guests made introductions. Opening remarks were made and the 

meeting agenda was adopted. The three main functions of the Board were presented. 

Electronic PVP (ePVP) application system update 

The PVPO’s ePVP system is now capable of receiving and examining 47 crops 

including soybean, peanut, pepper, and potato. The system has 2 components – the 

outside facing Portal for applicant data entry and Microsoft Customer Relationship 

Management (CRM) which in the internal Office only application for examination. The 

system has been enhanced so that breeders can now enter non-PVP reference 

varieties with their applications. The PVPO can now complete distinctness searches 

against both PVP and non-PVP varieties. The Board asked what percent of information 

has been transferred to the new system – it is more than half. 

Over the next 6 months the ePVP capabilities will be expanded with the addition of 8 

more crops (corn, wheat, barley, oat, tomato, triticale, rapeseed and rice). The issue of 

multiple reoccurrences of the same variety will also be corrected. Enhancements will 

include updated dropdown lists, additional field instructions and smoother operation of 

forms in the Portal for data entry. The system will also have the ability to save a 

template application which would ease data entry from the same applicant and will 

provide for the bulk upload of 20+ applications at one time. The Board ask if an external 

user would get an immediate distinctness pass/fail from the system after they enter their 

application variety information - not under the current system, but this might be possible 

in the future. 

The PVPO is looking for applicants who would need to be e-authenticated to test the 

system with either test or live data. It would also be useful to do more testing with 

potatoes and the grasses – the Board suggested looking at the ASTA Farm and Lawn 

seed division for the grasses and that it could help identify ePVP testers if a list of crops 

needing testing was provided. 

The longer term plan for the ePVP system includes 1) a training by Webinar in July 

2017, 2) a rollout plan with GovDelivery notices in August 2017, 3) the official ePVP 

launch with GovDelivery notice in October 2017, and 4) decommissioning the STAR 

database by October 2017. 

The office provided a live demonstration of the ePVP portal and CRM. The portal side 

provides an electronic screen that follows the PVPO’s paper forms. The Board asked if 

the entire application will be un-fragmented once the certificate is issued – it would. It 

was asked if electronic applications will replace paper before October 2017 –paper or 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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emailed application will be needed up until the October 2017 launch unless some of the 

ready-to-go crop (soybean, pepper) applicants choose exclusive electronic filing. 

The PTO congratulated the PVPO on its electronic system and mentioned that currently 

plant patents are filed using paper only since there are concerns about getting true color 

rendition in an electronic system. The ePVP system would accept scanned photos and 

PVP applicants usually provide a color reference number such as the Royal Horticulture 

society value for color representation. 

Joint ASTA/PVP Board Molecular Marker Working Group 

The joint ASTA/PVP Board Molecular Marker Working Group (WG) is made up of 27 

scientists from 18 public and private institutions. A history of the WG was presented 

focusing on prior work with the Reference Variety Model (presented to the December 

2014 Board) and the current work on Single Nucleotide Polymorphism (SNP) for 

soybean pairwise comparison model. An explanation of the basics of DNA and 

molecular markers and the use of isozymes to distinguish varieties was also discussed. 

Molecular markers (MM) have been used as proxies for morphology (for example with 

single gene traits which have markers somewhere in the genome - however these are 

rare). MM associated with specific genes are costly to identify and aren’t very simple 

since most traits are the results of multiple gene complex interactions. Another means 

to use MM is augmented morphology which identifies patterns; these are informative for 

distinguishing among individuals but aren’t associated with a specific trait. UPOV 

recognized this use of MM for the management of reference collections. MM have been 

used to calculate how different two varieties are based on the similarity of their DNA. 

MM have been used in a criminal cases recently – for example to match stolen corn 

seeds to proprietary germplasm. It was noted during the 2016 UPOV Biomolecular 

Technique (BMT) meeting 9 of the 25 topics involved DNA markers. It was also noted 

that both the European Union’s Community Plant Variety Office (CPVO) and the Seed 

Association of the Americas (SAA) have active MM working groups. 

The use of SNP markers to determine differences between 2 varieties compared to the 

use of isozymes in barley for distinctness by the CPVO was discussed. The CPVO 

document explained that the barley isozymes are not routinely used to determine 

distinctness, but they can be used as a complement to other characteristics. The WG 

approach is similar to the CPVO method in that it wouldn’t be used routinely, only in 

those cases where distinctness was in question. The SNP WG approach would 

complement other differences and would only be used as needed (similar to the CPVO 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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approach) but using SNP markers instead of isozymes. It would only be called upon 

when morphological evidence is not adequate to determine distinctness. 

The WG has made progress in 1) it defining the marker technology used - SNP, and 2) 

defining what public marker sets should be used - 6K set for soybean and 3072 set for 

maize. Currently the WG is working on determining the maximum similarity threshold 

for soybean distinctness. In 2017 the WG plans to have technical recommendations for 

the threshold along with guidelines, methods, and standard operating procedures. A 

SNP subgroup of the WG was formed and has 8-10 active participants using 4-5 

analytical approaches– they are now working now toward scientific consensus and a 

preliminary write-up of results and conclusions. 

The Board asked what the thought process in determining thresholds. The WG 

genotyped 320 public soybean varieties and did pairwise comparisons between all 320 

varieties. They focused on investigating those varieties that approached a similarity of 

1.0. It was also explained that there has extensive essential derived variety (EDV) work 

in maize and this would help establish thresholds. 

The WG will provide a recommendation to the Board and formulate results of the 

threshold study for publication in a peer reviewed publication. The WG needs to be 

clear how they got to the threshold recommendation to provide the Board with a good 

basis for a recommendation to the PVPO. The Board asked if the thresholds will be 

different for different crops – yes it would be crop specific due to the genomic and 

marker specificity of different crops. The Board asked if a threshold goes both ways 

i.e., if a variety is above the threshold – does that prevent it from obtaining PVP. No, a 

variety above the threshold could obtain PVP if other morphological characteristics 

could distinguish it from other varieties. 

The Board asked what did the office need from the WG and the Board to use the 

threshold in the case of a tie. The PVPO would need it shown that this approach is 

scientifically valid by undergoing a peer review process and also an explanation of the 

threshold concept in non-technical terms. SOPs and guidance would be developed 

based on the peer reviewed publication. The Board stressed that the threshold 

approach will need scientific validation through the peer review process. 

The history of the threshold concept was further explain based on a previous Board 

recommending that it is reasonable to use background MM in the case of a tie. Also the 

previous Board recommended a team to study the threshold idea and what level of 

similarity/difference is enough. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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The Board asked how many ties does the PVPO encounter – it’s very low, less than 

1%. Currently in the case of ties – the PVPO works with applicant to find other 

characteristics (morphological or disease tolerance/resistance characteristics) that 

applicants can use to distinguish a variety. The Board asked were there any 

considerations of using MM exclusively – no the PVPO will rely on morphology as the 

primary determination of distinctness. 

The Board summarized that the use of SNP MM would be rare and would not be used 

exclusively – only to break ties. The Board also recommended that an independent 

validation set be developed to demonstrate the utility of breaking ties and that there is 

enough genetic variation in background markers to distinguish varieties. 

The Board commented that there could be some unintended consequences of setting a 

threshold such as enforcement issues, verification, error rates, etc. It would be 

important to review these and other factors before establishing thresholds. The Board 

asked what if the pairwise problem occurred between 2 different companies’ varieties – 

it was explained that in the CPVO both parties would need to agree to run a MM 

comparison. 

Presentation of the UPOV EAS, ISC, and current topics 

Peter Button (Vice Secretary-General of UPOV) provided an overview of the UPOV, use 

of biomolecular techniques, the planned Electronic Application Form (EAF), an update 

on discussion for an International System of Cooperation, and other relevant topics. 

UPOV members can cooperate with other countries by using existing distinct, uniform, 

and stable (DUS) test reports that are produced by a different UPOV member which can 

eliminate the need for a separate DUS test in that country. Under the UPOV Model 

administrative agreement it is recommended that the receiving country pay 350 Swiss 

francs (CHF) for taking over the DUS report from the producing country. Other 

arrangements that UPOV members have developed are 1) bilateral arrangements that 

remove the duplication of DUS Tests and 2) centralized DUS testing at regional or 

global level that encompass several countries. UPOV has guidance on what the DUS 

report should include in document TGP/5 including a model DUS report and variety 

description. UPOV also has a model DUS test agreement that assists the cooperation 

of UPOV members. It’s recommends that DUS examinations follow UPOV Test 

Guidelines so that the examination and resulting DUS report will be the same from 

country to country. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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UPOV has a network of cooperative agreements that can be found in the UPOV GENIE 

database. For example Switzerland will take over any UPOV members’ DUS report and 

Slovakia has an agreement to accept DUS reports from the Czech Republic. UPOV is 

also conducting a survey to investigate obstacles to cooperation in examination. 

The concept of using molecular techniques within UPOV for DUS was discussed. 

UPOV has worked on the FAQ “Is it possible to obtain protection of a variety on the 

basis of its DNA-profile - with the response: “For a variety to be protected, it needs to 

be clearly distinguishable from all existing varieties on the basis of characteristics that 

are physically expressed, e.g. plant height, time of flowering, fruit color, disease 

resistance etc. The DNA-profile is not the basis for obtaining the protection of a variety, 

although this information may be used as supporting information.” The Board asked if 

isozymes are included as a DNA-profile – no isozymes are considered as a part of the 

variety’s phenotype and closer to morphology. The use of specifically isozymes is 

covered UPOV document TGP/12 “Guidance on Certain Physiological Characteristics”, 

which explains as follows: 

“[...] 

2. With regard to protein characteristics derived by using electrophoresis, 

UPOV has decided to place these characteristics in an annex to the Test 

Guidelines, thereby creating a special category of characteristic, because the 

majority of the members of the Union is of the view that it is not possible to 

establish distinctness solely on the basis of a difference found in a characteristic 

derived by using electrophoresis. Such characteristics should therefore only be 

used as a complement to other differences in morphological or physiological 

characteristics. UPOV reconfirms that these characteristics are considered 

useful but that they might not be sufficient on their own to establish distinctness. 

They should not be used as a routine characteristic but at the request or with the 

agreement of the applicant of the candidate variety. 

3. For protein characteristics derived by using electrophoresis to be included 

in an annex to the Test Guidelines, it is necessary: 

(a) to establish the genetic control of the protein(s) concerned; and 

(b) to specify an appropriate method for the examination. 

4. Examples of protein characteristics derived by using electrophoresis can 

be found in the Test Guidelines for Barley (document TG/19/10), for Maize 

(document TG/2/7) and for Wheat (document TG/3/11 + Corr.).”
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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Another more specific FAQ was “Does UPOV allow molecular techniques (DNA profiles) 

in the DUS examination?” with the responses “It is important to note that, in some 

cases, varieties may have a different DNA profile but be phenotypically identical, whilst, 

in other cases, varieties which have a large phenotypic difference may have the same 

DNA profile for a particular set of molecular markers (e.g. some mutations). 

In relation to the use of molecular markers that are not related to phenotypic 

differences, the concern is that it might be possible to use a limitless number of markers 

to find differences between varieties at the genetic level that are not reflected in 

phenotypic characteristics.” 

On this basis UPOV has agreed to the following uses of molecular techniques in relation 

to DUS examination: 

Molecular markers can be used as a method of examining DUS characteristics 

that satisfy the criteria for characteristics set out in the General Introduction if 

there is a reliable link between the marker and the characteristic. 

A combination of phenotypic differences and molecular distances can be used to 

improve the selection of varieties to be compared in the growing trial if the molecular 

distances are sufficiently related to phenotypic differences. This method does not create 

an increased risk of not selecting a variety in the variety collection to compare to 

candidate varieties in the DUS growing trial and would reduce the cost of growing the 

DUS trial. This model was used for maize and is being considered by UPOV members 

in other crops. 

It was explained that varieties may be seen as phenotypically identical but have 

different DNA profiles and conversely two varieties may have a large phenotypic 

difference but have an identical DNA profile. It was also discussed that there was a 

concern that changes could be made in the non-coding part of the DNA that would show 

a different DNA profile but be identical phenotypically. 

UPOV also has the PLUTO database to assist UPOV members in using the same 

variety denomination for that variety worldwide. 

The Electronic Application Form (EAF) project was developed to help breeders file PVP 

applications in any of the participating members using questions in any of the 4 UPOV 

languages and potentially other languages of participating UPOV members. EAF data 

can be automatically re-used in subsequent applications. The EAF is planned for 

launch on January 9, 2017 for apple, lettuce, potato, rose, and soybean with 12 UPOV 

members participating. In 2017 the EAF will have further enhancements including 

additional UPOV member participation, more crops, and languages. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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The EAF process uses the UPOV website as a type of postbox permitting direct data 

transfer and email application filing. Breeders would have the opportunity to upload 

data directly from their file server to the UPOV server without manual entry. 

The EAF would not affect the fees that breeders pay to UPOV members for PVP filing, 

but there would be a UPOV processing fee (initially 150 CHF and then increasing to 250 

CHF) to cover costs. UPOV anticipates about 180 applications filed by EAF in 2017 

and increasing to approximately 1,700 applications by 2022. The Board asked if all 

UPOV1991 members participated in EAF - any UPOV member (1978 or 1991) was free 

to participate with the only requirements being that a UPOV member provide their 

application forms and technical questionnaires. 

The possible International System of Cooperation (ISC) was discussed based on the 

proposal of the International Seed Federation, the International Community of Breeders 

of Asexually Reproduced Ornamental and Fruit Varieties (CIOPORA), and Crop Life. 

UPOV has reviewed this proposal and is looking to build on existing voluntary 

cooperation instead of building a new centralized filing system. 

A UPOV cooperation system could involve: 1) a breeder making an application via EAF, 

2) bilateral arrangements for examination between UPOV members, 3) cooperation on 

novelty and variety denomination. Ultimately it would be each UPOV member’s final 

decision on granting PVP. 

UPOV has set up a working group to look at the purpose: 1) responsibilities remain with 

each UPOV member, 2) participation and cooperation would be voluntary, 3) it would be 

inclusive and applicable to all UPOV members, and 4) it must be efficient and based on 

existing UPOV initiatives and materials. The first meeting of the ISC working group 

identified the needs of UPOV members and, in the next step, will review how the issues 

raised by breeders correspond to those needs. The key aspect of an ISC is that it 

would be cooperation from bottom up – cooperation between members that feeds to the 

international level. 

The Board asked if the ISC-WG has been constituted – yes and the U.S. is a member of 

the WG. 

Presentation on the Netherlands PVP process and the use of molecular 

technology from the UPOV-BMT perspective 

Kees van Ettekoven provided an overview of the Netherlands PVP system and the 

usage of molecular technology within UPOV. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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The program for PVP and DUS testing in the Netherlands was described. The 

Netherlands in a world market leader for vegetables, ornamentals, and potatoes with 

approximately 24% of global export of seeds/propagating material and 47% of 

European seeds/propagating material. There are approximately 2,200 applications filed 

annually for new varieties that are split between the Netherlands and the Community 

Plant Variety Office (CPVO). The Netherlands has about 350 breeding companies that 

have about $3 billion annual sales and with about 15-20% of sales spent in research. 

The Netherlands lead Plant Breeder’s Rights (PBR) office is located in Naktuinbouw 

with a staff of 286. Since 1960 over 62,000 variety applications have been filed for 663 

different species – with vegetables, ornamentals, and agricultural species topping the 

list. The Netherlands has obligatory national lists for agricultural, fruit and vegetable 

species – where that variety can only be marketed if it is officially listed/registered. 

Agricultural species also require value for culture and use (VCU) where the variety must 

show better traits than the existing varieties. The Netherlands works with the CPVO to 

translate UPOV test guidelines into protocols that provide stricter adherence on which 

DUS characteristics to examine. 

The Netherlands PBR is self-financed. The cost of filing PV in the Netherlands is 434 

EU per application, with a 1,855 to 2,530 EU charge for each DUS testing per cycle – 

with most species requiring 2 growing cycles. There is no annual maintenance fee. 

Total costs are approximately $6,000 for a tomato variety. 

 

In 2015 2,482 applications were received. The Netherlands has bilateral cooperation 

with other EU offices – for example maize gets tested by France, Germany – fruit, 

wheat – Czech Republic, etc. 

The structure of the regional European (CPVO) system was also discussed - it co-exists 

with the national systems of 24 EU member states. It is the applicant’s choice on where 

to file either at the national or CPVO level. In the EU the farmer’s saved seed 

exemption is limited to fodder plants, cereals, potatoes, oil and fiber plants; farmers are 

required to pay the seed company for saved seed at a price that’s lower than the 

amount charged for the licensed seed. Small farmers are exempt from this rule. 

The CPVO is self-financed with application fees of 450-650 EU, examination fee of 

1,430-3,210 EU/cycle, 240 EU take over fee, and 250 EU annual fee. The Board asked 

about the CPVO’s online application process and the decision process for the 200 EU 

fee reduction with electronic filing. The CPVO found that the application quality was 

better with electronic filing and they saved money which both justified a fee reduction. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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The Board also asked what effect the British exit from the EU would have – it’s 

undetermined for now. 

The top species filed in the CPVO are ornamentals, agricultural, vegetable, and fruit 

varieties. The top 4 CPVO filing countries are Netherlands, France, Germany, and 

United States. In summary the CPVO provides an efficient system for applicants, less 

administration for national authorities, and protection at reasonable prices. 

The possible cooperation between the U.S. and Netherlands / EU was discussed and is 

open to further consideration. The PVPO discussed its pilot test with lettuce and that 

the EU data didn’t provide enough characteristics for the PVPO to distinguish a variety 

from others it the database. It was discussed that there will be further pilot tests looking 

at potato for possible cooperation. 

The Board asked if a variety becomes public in the Netherlands when the protection 

expires – seeds of the variety are not released to the public upon expiration. The 

Netherlands will however send the germplasm of open pollinated varieties to the public 

gene bank upon expiration. The Board asked if there has been consolidation of seed 

companies in the Netherlands and its impact on PVP – there has been some 

consolidation with the Netherlands PBR office experiencing a temporary reduction in 

applications for 2-3 years following a consolidation. It was explained that following 

consolidations small niche breeding companies often fill the breeding voids. 

The role of DNA in plant breeding, supporting DUS testing, management of variety 

collections was discussed. It was explained that electrophoresis data was one of the 

first non-morphological characteristics to be used as a supporting evidence in DUS 

testing. The two most common use of molecular markers by the EU were discussed: 

Option 1 - Characteristic-specific molecular markers – this is straight forward with 

example of specific disease resistance markers in tomato and cytoplasmic male 

sterility in Brassicaceae; 

Option 2: Combining phenotypic and molecular distances in the management of 

variety collections. This option is more complicated and includes the 

management of variety collections in potato to reduce the number of reference 

varieties in DUS trials, decreases the field trial duration time, and cost. Its 

advantages include 1) having a huge collection of varieties in common 

knowledge in a DNA database, 2) increased reliability for a candidate variety to 

be (or not to be) distinct from all that is known, 3) possible exclusion or inclusion 

of reference varieties based on their DNA profiles, and 4) in some cases the 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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duration of DUS trial can be reduced (cost reduction). The use of DNA 

databases as source for genetic first selection of close varieties from common 

knowledge has advantages for reducing the size and cost of DUS trials. The 

advantages include greater certainty that no identical varieties are missed, less 

confusion with breeder provided technical questionnaire data, and the 

independence of DNA databases from climate and other physical facors. DNA 

database challenges include the selection of the marker set and the cost of 

building the database. 

New potential UPOV molecular models might include 1) the use of DNA data in 

combination with a morphological description as basis for DUS decision and 2) the use 

of genetic distance relative to standard varieties as a UPOV characteristic. For the U.S. 

“tie-breaking” approach– it was explained that this would not be in line with UPOV since 

the determination would not be based on expressed characteristics. However the U.S. 

approach might be considered valid if molecular data is used in connection with nonUPOV differences such as yield, lodging, or performance. (Yield is not an acceptable 

DUS characteristic because it is unreliable and it is very difficult to get statistically robust 

data between 2 varieties.) 

The Board discussed that it may not be good to use the term “tie” - it was suggested to 

use “morphologically indistinguishable” instead. 

The reference variety model as first proposed by the U.S. at the 2015 BMT meeting was 

discussed. The idea of converting genetic distance between an application and 

standard reference varieties into a ‘normal’ UPOV characteristic was also discussed. 

(The reference variety model is essential the same as the genetic distance model 

described below.) It may be possible to have the reference variety model adapted to be 

included in a variety description as an additional characteristic. This idea did not have 

much support at the Moscow 2016 BMT meeting. It was proposed that at the 2017 

BMT La Rochelle meeting it may be possible to create genetic distance characteristics 

in an annex to a crop’s test guidelines as a special characteristic category. Such 

characteristics would be only be used as a complement to other morphological or 

physiological differences. 

Genetic distance characteristics would be useful but that they might not be sufficient on 

their own to establish distinctness. The genetic distance concept has advantages in 

that there is no need to develop databases and it would be very cost effective. Its 

challenges include the selection of the best marker set, identification of the standard 

varieties, and the DNA platform that would be used. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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Other UPOV related DNA developments include the creation of a joint tomato DNA 

database (between the Netherlands, France, and China based on a sequence based 

SNP array) partly financed by CPVO. The database would contain tomato varieties of 

common knowledge and be used for the genetic selection of varieties for DUS trials as 

well as enforcement and certification. The use of this database would be available for 

all DUS authorities against a fee through one of the three participants. Similarly a DNA 

database for rose varieties between The Netherlands, United Kingdom and possibly 

Germany is being considered based on a sequence based SNP array. 

The Board commented that a variety’s phenotype will vary based on the environment 

where it is grown. Breeders will take a variety from one geographic region and grow it 

in another place where it shows a different phenotype and then apply for PVP based on 

that new phenotype. Molecular data would show that the variety is identical but this data 

cannot be used to challenge since it is based on DNA data. 

The Board discussed China’s intellectual property (IP) activity for new variety 

development. It was discussed that China has advanced in the PVP world, having one 

of the largest mechanisms for IP protection and wanting to modernize their seed 

industry with a robust IP system. China is very interested in enforcement – and the use 

of molecular markers. The central government has the power to control germplasm, but 

the provinces may have problems with germplasm theft. 

Overview of the December 2015 PVP Board Brainstorming Ideas, PVPO Actions, 

and New Brainstorming Ideas 

The PVPO provided an overview of the 11 brainstorming ideas that were developed by 

the Board at the December 2015 meeting. The molecular marker topic and ePVP 

deployment were not discussed any further at this session since they were discussed in 

detail during the earlier session. 

Develop better FAQs on the benefits and differences between PVP and Patents 

The PVPO developed a chart highlighting the benefits and differences between PVP 

and Patents by focusing on the topics presented in the chart below 

Question: What are the differences between PVP and Utility Patents for new plant 

varieties? 

Response: The table below highlights some of the main differences and benefits of PVP 

and Utility Patents. This information does not constitute legal advice. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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TOPIC PVP Utility Patent

Requirements New, Distinct, Uniform, and 

Stable 

New, Non-Obvious, Useful 

Novelty (New) 1 year of sale in U.S. / 

4 years sales outside the U.S. 

Up to 1 year - only for the 

applicants from disclosure (e.g. 

sale, public use, publication) 

Years of Protection 20 years after issuance - for 

most plants; 25 years for trees or 

vines 

20 years after issuance (can be 

modified under certain 

circumstances; e.g. regulatory 

review) 

Protection after 

Filing

Yes, full protection while the 

application is pending 

Yes, some protection after filing 

and before issue (see 35 USC 

154(d) for more information) 

Estimated Filing 

Costs 

$5,150 – No maintenance fee Varies depending on the 

patentee corporate size - can 

range from $8,000-$20,000. 

Maintenance fees required 

Essentially Derived 

Varieties (EDV) 

Provides for EDV No EDV Provision, but claims 

can protect certain derivative 

products 

International 

Acceptance 

Can be accepted to speed PVP 

filing in 70+ (UPOV) countries 

and PVP can be used to 

establish priority. 

Not accepted worldwide 

Research for plant 

breeding 

Research is allowed unless 

excluded by other agreements or 

patents 

No research allowed, depending 

on issued claims 

Farmer Saved Seed Allowed to use on own farm 

unless excluded by other 

agreements or patents 

Not allowed, depending on 

issued claims 

Public Usage in a 

Crisis 

Secretary may declare a variety 

open for public use 

No provision. Bayh–Dole Act 

may provide public usage for 

varieties developed through 

federal government-funded 

research 

Germplasm deposit 

requirement 

Seed or tuber deposit (including 

any propagating material 

necessary for propagation of a 

variety) required - which only 

Seed or propagating material 

deposit may be required to fulfill 

a patent’s enablement 

requirement – this material may 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

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becomes publicly available upon 

PVP expiration 

be available to the public after 

patent issuance. 

Time to Grant Approximately 1-1.5 years Approximately 1-3 years 

Who may file Anyone can file a PVP 

application including breeders, 

farmers, and legal 

representatives 

Usually requires a legal 

representative that is registered 

to practice before the Patent 

Office 

The Board suggested that data analytics be used for this FAQ and response using a 

“click through” approach and to consider presenting this topic to a variety of users. It 

was also suggested PVP’s benefits be highlighted and show that neither PVP nor 

Patents are mutually exclusive since dual protection can be obtained in the U.S. It was 

also suggested that plant patents be mentioned. 

An infringement litigation category might also be another topic to add to the table from 

the PVP standpoint (PVP stops others from selling/marketing the variety; PVP has a 

proven track record in the courts; and PVP provides a litigation advantage while not 

“risking” the broader protection of the patent) and the Patent standpoint (Patents can 

stop others from saving seed / using the variety for further variety development; 

litigating may put an entire trait (disease resistance, herbicide resistance, etc.) at risk; 

and patent litigation may involve a team of lawyers and is tried in the federal district 

court system). 

The Board suggested that this FAQ would be best done as a digital infographic poster 

presentation perhaps by creating a competition among law students to prepare an 

infographic. Students could be awarded prizes and present their final product at ASTA 

events or the PVP Board meeting. The Board commented that it would be important to 

know the audience since a potential user of the PVP system may be more interested in 

understanding the PVP’s benefits than the differences with patents. Also a poster could 

be used at outreach events that the PVPO cannot attend. 

The Board asked if the PVPO uses social media – PVPO’s social media coverage is 

coordinated by AMS public affairs. The Board commented that both the legal wording 

of the FAQ response as well as the user friendliness of the response needs to be 

considered. The Board recommended not putting this together as a narrative paper 

since it would bury what it trying to be conveyed with an infographic. 

Exploring creative ways to mitigate the effects of PVP exemptions (breeder’s exemption 

and the right to save seed exemption) 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

Page# 15

Based on the PVP Act and UPOV 1991 convention – both the breeder’s and right to 

save seed exemptions are permitted however variety owners can restrict exemptions 

through contracts. The Right to Save Seed exemption is described in section 113 of the 

PVP Act – and in Article 15 of the UPOV convention. The breeder’s exemption is 

described in section 114 of the PVP Act and in article 15 of the UPOV 1991 convention. 

There is no provision under U.S. PVP that can limit or mitigate these exemptions 

however both of these may be limited through contractual agreements. 

Establish a quality management system 

The goal in establishing a PVP Quality Management System would be to show that the 

U.S. PVP system is verifiable, accountable, and that both the PVPO and its applicants 

follow defined procedures. The PVPO presented a proposed Quality Manual as an 

example of what the system would encompass from both the applicant’s and the 

PVPO’s perspective. In this example the PVPO processes would provide guidelines for 

applicant activities and would document the SOPs, guidelines, and instructions for the 

PVPO activities. Under this approach the PVPO would have guidelines that help 

applicants with topics such as choosing/completing the correct forms to selecting the 

correct reference varieties. 

The Board commented that this may be more a user guide than Quality Management. 

The PVPO explained that the outline is preliminary and that the intent is to would 

document processes and provide advice to applicants. Developing the breeder’s 

interface would require input from both the Board and breeders to look at their quality 

systems in place. Also interfacing with breeders would be done so as not to add any 

burdens. The PVPO plan is to first produce the Quality Management system and to 

extract a User’s guide afterward. The Board recommended that the ePVP system 

provides a well-documented user’s guide. It was mentioned that discussion of quality 

management usually involves records to measure quality that can be audited and which 

implies processes that are verifiable and auditable especially in the seed sector (UPOV 

does not set a standard for every member and PVP office). 

The PVPO plan is to create a quality manual to show how it conducts its operations 

which cannot be measured against an external standard. It was explained that the 

intent is to develop a quality management manual that covers the quality of the entire 

PVPO system showing how it’s verifiable and can be audited. The Board explained that 

each company will have its own quality management system for plant breeding and 

recommended the PVPO quality system not impinge upon the breeder’s system. The 

Board suggested looking at the ASTA website for the seed quality management manual 

as an example. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

Page# 16

The Board asked what were the steps and timelines to develop the quality management 

system. The PVPO will look at other quality systems to see if other outlines are more 

appropriate and readjust the plan it as needed. The Board asked if the Quality system 

could benefit by having interaction with the Board or other groups. The plan is to have a 

more defined outline of a Quality Management system by next year. 

Enhance the enforcement of PVP 

It was explained that the PVPO has no enforcement authority and that it’s the 

responsibility of a variety owner to enforce their PVP right. In order to help breeders 

with enforcement – the PVPO plans to develop a webpage with tips on infringement and 

enforcement including:1) providing information on remedies for infringement; 2) 

recommend language for seed-bag labels to give notice about a variety’s PVP status; 

and 3) providing links to other websites regarding infringement/enforcement. Examples 

of infringement findings and settlements from the Farmer’s Yield Initiative website 

(www.farmersyieldinitiative.com) were provided to the Board. 

The Board suggested reaching out to the Seed Innovation and Protection Alliance 

(SIPA) for help on communicating transparency of enforcement/infringement. The 

Board also suggested not posting infringement settlements on the PVPO website – but 

use third party website links instead. The PVPO should discuss what guidance tips for 

infringement it can provide with the USDA Office of General Counsel. 

It was mentioned that SIPA has an infringement tip line. The Board commented that the 

variety owner does not need to spend effort on infringement discovery but needs help 

on what to do when infringement is suspected. The Board suggested that the PVPO 

not offer advice on infringement but instead direct inquiries to others using resources 

such as SIPA. It was asked if there any organizations to offer guidance on PVP rights – 

SIPA, agricultural law policy centers and legal reviews fulfill this role (Illinois, Iowa, 

Arkansas, George Mason law schools may provide resources on enforcement). It was 

suggested that the American Bar association and the American Intellectual Property 

Lawyers Association would be other resources. 

Using Board members for PVP outreach 

The PVPO has developed a basic PVP outreach presentation that has been reviewed 

by AMS Public Affairs and was provided to the Board members. The PVPO will assist 

Board members in modifying the basic presentation to best fit their audience. The 

PVPO would like to hear back from any Board member who has made a PVP 

presentation to get feedback, were there any questions, and any other issues. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

Page# 17

PVP Factsheets are also available for Board members to use during any PVP outreach 

activity and can be downloaded/reprinted (a Spanish version will be available by 

February 2017). The Board suggested using the fact sheet as the first line information 

to educate small breeding programs about PVP. It would be useful to show breeders a 

pathway for intellectual property decisions and to elaborate the PVP route versus the 

patent route which could help a breeder or their legal counsel choose the best path to 

pursue 

Surveying Universities about PVP 

During the December 2015 Board meeting it was suggested that the University/Public 

Sector should be targeted for outreach. In response the PVPO communicated with 12 

universities by phone asking question about their use of PVP. The PVPO and a Board 

member also made outreach presentations at 3 university venues to increase 

understanding and elicit questions about PVP. 

Based on these conversations it was found that universities release about 7 varieties 

each year and apply for about 3 variety-PVPs per year on average. The PVPO also 

learned that some institutions don’t obtain any intellectual property protection at all. The 

lack of any protection was particularly true for forage species (alfalfa and many of the 

grasses) – these developers sometimes choose the Association of Official Seed 

Certifying Agencies (AOSCA) variety review board route instead. Based on the variety 

review board recommendations these varieties can be selected to be sold only as 

certified seed and as such the developer can control the seed necessary to produce the 

variety as part of the certification process. 

The PVPO also found that one of the largest barriers for university breeders obtaining 

PVP was the lack of commercial sponsors and low market interest for some new 

varieties. University breeders might be more interested in obtaining PVP if PVP forms 

were simplified, asexual varieties were added to U.S. PVP, electronic filing was 

available, and commercial partners could be found. Even though the PVPO was not 

able to find a pool of prospective applicants through this survey process it is now able to 

better communicate with the university community using phone, email, and 

GovDelivery. 

The Board commented that the university sector is also a good outreach target for SIPA 

and that it would be beneficial to ask universities “what is your IP policy?” and “who 

makes the IP decisions at your institution”. IP is handled very differently at each 

university. It was mentioned that SIPA is looking to reach universities using AUTM and 

the PVPO could leverage what other organizations are doing to reach the universities. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

Page# 18

The Board mentioned that the university industry partner problem is large and that 

without licensing partners no further actions are taken for IP protection. . 

Using a different venue for university outreach - the PVPO will provide a webinar to 

AUTM on January 24, 2017 in conjunction with USDA-ARS Office of Technology 

Transfer “Insights into Plant Variety Protection and Variety Licensing”. The PVPO may 

also participate in March 2017annual AUTM meeting. The Board suggested looking at 

the Agronomy society annual meeting to organize a session with technology transfer 

and breeders to discuss the U.S. framework for the IP. It might also be beneficial to 

work with SIPA on identifying breeders/technology transfer for university outreach. Two 

other possible venues for outreach are the University Industry Consortium meeting 

(Baltimore, April 2017 and the ASTA farm and lawn seed conference held every fall. 

Exploring an annual maintenance fee 

The PVPO explained that an annual fee could be added by changing PVP regulations 

based on Section 31 of the PVP Act. However, the PVP Act doesn’t provide a means to 

take action or to cancel a certificate for the non-payment of this fee. The Attorney 

General may bring action for the recovery of charges, but this is unlikely. It does not 

appear that the PVPO can recover enough annual fee payments to cover its cost (the 

CPVO PVP owner pay this fee for 4.4 years and Canadian PBR holders pay for 5.4 

years on average) 

It would not appear to be worthwhile for the PVPO to add a regulation for annual fees 

due to 1) the complexity of regulation change, 2) determining appropriate fee structure 

change – i.e. reduce the filing examination fee while instituting an annual fee and 3) the 

longevity of an annual fee is relatively short based on the experiences of other counties. 

The Board commented that if the PVPO put an annual fee in place that it would need to 

recover most of its costs in the first 5 years to recoup its current revenue. 

Exploring adding asexually propagated varieties to US PVP 

During the December 2015 PVP Board meeting it was suggested that the PVPO 

explore adding asexually propagated plants to PVP by looking at the PVP law and 

regulations. Two sections of the law as detailed below would prevent asexually 

propagated plants from obtaining PVP. 

Sec. 42. Right to Plant Variety Protection; Plant Varieties Protectable, (a) IN 

GENERAL.-The breeder of any sexually reproduced or tuber propagated plant 

variety (other than fungi or bacteria) who has so reproduced the variety, or the 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

Page# 19

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; 

Sec. 52. Content of Application (4) a declaration that a viable sample of basic 

seed (including any propagating material) necessary for propagation of the 

variety will be deposited and replenished periodically in a public repository in 

accordance with regulations to be established hereunder. 

The PVP Act requirement for the deposit of seed necessary for propagation of the 

variety cannot be fulfilled even with regulation change therefore adding asexual 

varieties would require changes to the PVP Act. 

The two relevant points regarding PVP and asexually propagated plants are: 1) 

asexually propagated variety developers are looking for help on essentially derived 

varieties (EDV) – since it’s possible to develop an EDV from one that is protected by a 

plant patent however the patent law has no provision for EDV and 2) variety developers 

from outside the U.S. are barred from obtaining a plant patent if their variety has been 

disclosed for 1 year or more (all other UPOV country PVP Offices provide for 4 years for 

breeders from outside that country). This section of the patent law has prevented 

foreign plant breeders from protecting or marketing their varieties in the U.S. 

The Board commented that if asexually propagated plants were added to PVP 

cryopreservation of these varieties may be an option for the germplasm deposit. The 

deposit serves as a voucher specimen that is used as the official representation of the 

variety. It was mentioned that in the Netherlands only the DNA is stored for the 

representation of the variety and not the germplasm. The Board discussed the 

importance of the deposit and the public availability of the germplasm as a social 

contract between the variety developer and the public. 

ASTA is reviewing if changes to the PVP Act could be made to protect asexually 

propagated varieties and may come back to the Board with a recommendation. ASTA 

is looking into the options of the Plant Patent Act and the PVP Act in conjunction with 

the PTO and expects to have a report in early February. 

Develop guidance on conducting DUS tests for US PVP 

Historically some guidelines for conducting U.S. DUS field test were part of the exhibit C 

form and other guidance was on the PVPO website resulting in PVP guidance that was 

often confusing. In the past the PVPO provided in-person training on conducting DUS 

tests and selecting reference varieties however the training was discontinued due to 

budgetary reasons, as a result more guidelines were added to the Exhibit C forms. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

Page# 20

The PVPO made changes to remove the guidelines from all exhibit C forms as well as 

removing suggested reference varieties from the forms (some listed reference varieties 

were so old that they were difficult for breeders to obtain and no longer relevant). The 

PVPO will develop test guidelines for all crops with a draft of the Soybean test guideline 

to be completed by March 2017. These guidelines will be a type of instruction manual 

on how to conduct a field test and collect data for a PVP application. The guidelines will 

follow the same format as those established by UPOV. Both plant breeders and the 

PVPO examiners will review the test guidelines before these are publicly available. 

The overall purpose is to show that the U.S. PVP Office has guidelines that applicants 

follow and which are very similar to UPOV’s but which allow some flexibility for the 

breeder DUS testing system. The PVPO will recommend that breeders follow the 

UPOV test guidelines for any crop without a PVPO established guideline. 

The Board agreed that alignment with UPOV and providing U.S. guidelines that are 

consistent with other countries was important. It would help other countries to accept 

U.S. DUS reports if these test were comparable to the DUS tests done by other 

countries. It was mentioned that the UPOV soybean test guidelines were last changed 

in 1998. The UPOV process for updating the soybean guidelines would occur after a 

member’s proposal to revise the guideline along with participation in UPOV 2017 

Technical Working Party for Agricultural Crop meeting. 

The Board asked if there were other UPOV members who have a hybrid of breeder 

testing / government testing. In UPOV there is a continuum range of testing systems 

from breeder based to government based testing. The Board mentioned that in some 

countries the government does not have good DUS facilities so that the phenotype of a 

variety is flawed and different from what the farmer or breeder observes. In UPOV it is 

important to have consistency of testing so that all of a crop’s varieties can be 

compared under conditions that express their characteristics in a reasonable way. 

New Idea for 2016 – Host the UPOV BMT meeting 

The UPOV Biomolecular Technique (BMT) Working Group discusses and evaluates 

approaches for using molecular markers in the PVP examination process. The last time 

the U.S. hosted the BMT was in 2005. The U.S. has been actively involved in the BMT 

for the past several years. The PVPO asked the Board if the U.S. should host the BMT 

meeting in 2019 with possible venues in Washington DC, Iowa, or Davis, CA. Possible 

funding could be provided by the USDA, PTO, and the seed industry for a reception or 

tour of molecular facilities. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

Page# 21

The Board asked how large would the group be – 40-50 attendees is typical. UPOV 

indicated that several countries are also interested in hosting the 2019 meeting. The 

Board discussed that it may be difficult to have international visitors travel to Iowa 

compared to Davis or Washington. However Iowa would be a very good venue to 

highlight the U.S. seed industry and molecular marker facilities. The BMT meeting is 

usually a 3 day session with an additional explanatory workshop. With the faster 

developments in molecular marker research it may be necessary for UPOV to have 

more frequent meetings instead of every 18 months. The UPOV Technical Working 

Party for Computers and Automation meeting may also be important for the 

consideration of bioinformatics, statistics, and database issues. The Board endorsed 

and supported the concept of the U.S. hosting the 2019 BMT meeting. 

PVP Incoming Application Issue 

The number of PVP applications that were filed peaked in fiscal year 2010 at 598, in 

FY16 - 413 applications were received, (over the past 10 years the PVPO received 491 

applications on average per year). Incoming corn applications was at an all-time low in 

FY16 - 9 were received. Also only 9 applications were received in October and 3 in 

November, over the last 10 years the PVPO received 50 applications on average for 

those combined 2 months. The PVPO presented these numbers as evidence that there 

may be a decreased incoming application trend. 

There may be many factors contributing to the drop of incoming applications including 

increased protection options with both utility patents and plant variety review boards for 

seed certification; ever decreasing applicant pool due to industry consolidation; the high 

initial cost of PVP; and inadequate benefits of PVP compared to other IP options. 

The PVPO asked the Board: Has PVP’s usefulness to the plant breeding community 

decreased? Is there less need for PVP? How can we determine if PVP is relevant in 

the current IP landscape with other options available to variety developers? Should we 

accept this and let the market decide? Is reduction of incoming PVP’s the new normal? 

What 1-2 factors would enhance PVP’s usefulness? What can we do to counter the 

trend? What are possible “low hanging fruit” to improve PVP’s significance? 

The Board discussed the merger of seed companies and policy shifts on PVP filing. 

The Board wanted to know what crops didn’t file applications in the first 2 months of this 

year – in FY17 the filing was a mix of potatoes, lettuce, beans and other crops; for prior 

years the crops expected in the first 2 months is highly variable. Seed industry 

representatives indicated that they will be filing their corn applications during January 

through March 2017. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

Page# 22

The Board commented that it can’t be assumed that seed industry consolidation would 

cause decreased incoming applications. Also there is a lack of understanding on how a 

breeder can enforce PVP. The PVPO commented that in the U.S. there are other IP 

options that plant breeders might be selecting over PVP. The PVPO is not at a crisis 

state yet, the current application inventory is in the low 200’s. When the ePVP is fully 

implemented examination will be faster and the inventory will continue to decrease. 

The Board asked if there are opportunities to collaborate with Canada for harmonization 

or mutual recognition for increased PVP filings. The PVP has had conversations with 

Canada but there is no concrete conclusion. The Board commented that the U.S. does 

not have obligatory royalties under PVP and farm saved seed is not a big problem 

except for wheat and cereals. 

It was commented that innovation is the life blood of variety development and newer 

breeding methods will need IP protection. It was mentioned that there is more 

integrated soybean variety development between North and South America with 

interchangeable technologies. The Board commented that it will be increasingly difficult 

for PVP applicants to work the old way especially for soybean. It was suggested that 

the PVPO needs to find reasonable ways to find acceptable differences in soybean 

since there are a limited number of morphological traits and that soybean breeders don’t 

want to measure more traits that have no effect on performance. 

The Board suggested that he U.S. could develop UPOV sanctioned data collection / 

examination centers so that other countries would accept the U.S. DUS reports. Ideally 

these would be PVPO certified testing facilities. (For example the phytosanitary system 

recognizes third party testers/certifiers.) It was stated that in Asian countries there are 3 

options for PVP DUS testing – 1) the applicant can collect the data, 2) government 

collects the data, or 3) the third party collects the data. 

It was suggested that if an applicant wants their data exported to another country they 

should work within the UPOV guidelines and ask for an official audit of their trial to 

insure that the required number of plants and varieties are in the trial and that the data 

collection is accurate. Breeders are very good variety testers – because they know their 

variety best. It’s important to know how other UPOV members would view this 

approach and if it would address their concerns. These type of discussions would be 

best to occur within the UPOV-ISC working group. The PVPO suggested a pilot 

program with the EU for one crop and work on acceptable standards and methods to 

satisfy both the U.S. and EU. The Board suggested starting off with a system that has a 

great chance of success and such as Canada. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 5-6, 2016 

Page# 23

PVP Board and the Next Meeting 

The next potential Board meeting would be a teleconference that would occur before 

May 2017 if needed depending on outcomes of the Molecular Marker working group or 

other issues that need the Board’s recommendations. The Board’s Charter was 

renewed on January 11, 2017 and is active for 2 years. The term of the 2015-2017 

Board expires on May 26, 2017. The PVPO is currently soliciting nominations for 2017-

2019 Board using the PVPO website and a planned Federal Register notice – 

nominations are due by March 20, 2017. 

The PVPO asked the Board their opinion about the next physical Board meeting. The 

Board suggested having the meeting again in Chicago in conjunction with the ASTA 

meeting but only for 1 day instead of 2 – most likely on the Monday. 

A motion was made to adjourn the meeting and was approved. 

Board Recommendations 

1) The PVPO should enlist volunteers to study the consequences/implications of 

establishing molecular marker thresholds. 

2) Use the term “morphologically indistinguishable” instead of “tie” for the SNP 

pairwise project. 

3) Work with law students to develop an infographic on the differences and benefits 

of PVP and Patents. 

4) Work on establishing a Quality management system in conjunction with the 

Board and seed industry. 

5) Work with SIPA to develop PVP website guidance on where breeders can turn 

for suspected PVP infringement and PVP enforcement assistance. 

6) Review the concept of adding asexually propagated plants to PVP after the 

ASTA winter conference. 

7) Develop a PVP user guide and test guidelines that follow UPOV guidelines that 

assist PVP applicants in conducting field trials. 

8) The U.S. should offer to hold the 2019 BMT meeting. 

9) Hold the next physical Board meeting 1 day instead of 1-1/2 days.