Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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USDA Plant Variety Protection Office (PVPO)

Water Tower Room of the Hyatt Regency Chicago Hotel

151 East Wacker Drive

Chicago, IL

Board Members attending (with affiliation):

Charles Brown; Brownseed Genetics, LLC

Joonhyung Cho; University of North Carolina at Chapel Hill

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

Katherine White; Wayne State University

Alternate: James Sutton, Georgia Department of Agriculture

Absent: 

Jianli Chen; University of Idaho

Danielle Conway; University of Maine

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:

Marymar Butruille, Monsanto

Amy Curtis, Monsanto

Stephanie Greene, USDA-ARS NCGRP

Lorne Hadley, Canadian Plant Technology Agency

Pam Howlett, Monsanto

Susan Jayne, Dow Agroscience

Brad Kurtz, DuPont Pioneer

Ricardo Machado, Brazil PVP Office

Mariana Menoni, Uruguay National Seed Institute

Paul Nelson, Monsanto

Anthony Parker, Canada PBR Office
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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Rodolfo Rossi, Nidera Seed Company

Fabricio Santos, Brazil PVP Office

Karen Stevenson, University of Iowa

James Weatherly, Seed Innovation Protection Alliance

Call to Order, Introductions, and Opening Remarks 

Opening remarks were made and the meeting agenda was adopted. The three main 

functions of the Board were discussed.

PVP 2015 Accomplishments

A report describing the PVPO’s accomplishments, application processing, incoming 

application overview, 2016 budget, and the 2016 Business Plan was reviewed. In 2015 

the PVPO received 502 new applications and processed 514 resulting in 335 

applications left in the inventory. The average application processing time was reduced 

from 2.3 years in 2014 to 1.6 years in 2015. Also the average weekly PVP application 

inventory was 326 applications in 2015 compared to 464 average applications in 2014. 

In 2015 three PVPO examining staff began serving on the Small Grains, 

Grass/Sunflower, and Soybean/Alfalfa/Legumes variety review boards. PVPO staff 

traveled to 3 different crop field trials to observe and gain a better understanding of 

plant breeder’s issues during the variety development process and gained practical 

experience in PVP field trial observations. The PVPO also established partnerships

with external parties to fund the staff’s participation at 1 domestic and 4 international 

stakeholder events after undergoing a USDA Ethics review.

PVP 2016 Business Plan

The PVPO will actively process PVP applications by examining at least 450 applications 

to maintain the inventory below 400 for the year and will reduce the average application 

processing time by 5%. The Office will move the electronic PVP (ePVP) system forward 

by 1) developing a plan to refresh data for crops that have a Microsoft Customer 

Relationship Management (CRM) database, 2) implementing a plan for entering nonPVP variety records into the CRM database, and 3) devising a plan for crops that do not 

have a database. The Board asked if CRM would be available for public searches –

currently CRM will be for internal PVPO use, but in the future public searches may be 

possible. 

The PVPO will explore customer payment account options by 1) looking into

establishing an applicant deposit account for PVP users to withdraw fees and 2) 

inquiring about additional payment options that provide more efficient fee payment.
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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The PVPO plans to improve customer services by 1) streamlining the potato application 

process and 2) improving the PVPO’s variety name verification process in conjunction 

with the USDA Seed Regulatory and Testing Division and European Union’s (EU)

Community Plant Variety Office (CPVO). The Board suggested that the PVPO posts 

this type of information on its website – including changes to its procedures and to let 

PVP users know useful facts. It was also suggested that the PVPO improve its website 

Frequently Asked Questions (FAQ) page. 

The PVPO will leverage the PVP Board to address program challenges to strategize on 

PVPO’s future and to better establish a strategic vision. The PVPO will also hold 

brainstorming sessions for its staff to help develop a future strategic vision. 

The PVPO will improve domestic outreach by 1) conducting quarterly meetings with the 

U.S. Patent and Trademark Office (PTO), 2) participating in intellectual property 

association meetings in conjunction with the PTO, and 3) reaching out to intellectual 

property rights offices of major universities. The Board mentioned that university 

licensing managers often overlook PVP as a form of intellectual property protection and 

that there may be an opportunity to improve PVP’s understanding with better interaction 

with university plant breeders and licensing offices. It was commented that small 

independent breeders who don’t have access to intellectual property rights (IPR)

lawyers might benefit from a better understanding of the PVP process. 

The PVPO will continue the promotion of the PVPO as a worldwide leader by continuing

to work with international partners to increase PVP cooperation / acceptance of 

examination results, and by being actively involved in the UPOV Electronic Application 

System (EAS) for lettuce, soybean, and potato.

The PVPO plans to expand the staff’s expertise by 1) developing their ability to present

information about the US PVP program and 2) providing the staff with online and 

classroom training opportunities on the use of molecular markers in PVP. The Board 

asked how molecular training would be accomplished – the PVPO will reach out to the 

seed industry, university (UC Davis Seed Biotechnology Center), and USDA partners to 

develop a training program. The PVPO will also develop learning criteria for its staff to 

become competent in DUS field trial observations during crop tours. 

The Board asked how the PVPO benchmarks its business plan versus its goals – the 

Office conducts quarterly and yearend reviews of each goal/accomplishment. The 

Board asked how the PVPO will measure if it accomplished university outreach – this is 

done by reviewing the action plan results especially – who reaches out, which 

university, and how many different universities. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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Electronic PVP Application System (ePVP) Update

The ePVP Application was initially completed in April 2014 with a migration of data for 

the PVPO’s top 55 crops; however migration errors occurred with the transfer of data 

from the PVPO legacy 31 year–old STAR database to the new Microsoft Customer 

Relationship Management (CRM) database. The initial ePVP goal was to launch in 

April 2014 but the data was not accurate and the portal setup was not user friendly. 

The PVPO and the Information Technology Service staff worked on solutions to correct 

these errors and to complete a clean migration of a 28 crop subset (including soybean, 

pepper, peanut, bean and 24 other crops) with data refreshment. The first phase of the 

new ePVP system was released December 18, 2015 with the PVPO’s examiner variety

distinctness search process switched from the legacy STAR database to CRM for those 

28 crops. 

The next ePVP steps will encompass additional programming to include non-PVP 

variety records and to migrate an additional 19 crop databases that had minimal 

migration errors. A third release of the software will require additional programming in 

CRM and will include the last 8 crops. Crops that are not included in the 55 crop 

database are either infrequent user of U.S. PVP or are new crops where a database 

has not been developed yet. Crops without databases will be examined 

manually. Releases 1 – 3 of the ePVP system will each involve a migration step and an 

examination switch from the old database to the new system. Our current plan is to 

completely switch all crop examination to the new ePVP system within the next two 

years.

The Board commented that the PVPO should be congratulated on the migration from 

the STAR database to CRM. The PVPO wants the Board and seed industry to be 

comfortable with the ePVP system and its application. The PVPO also decided not to 

do another contract to migrate incorrect or new data but instead manually entered the 

data for 375 applications. 

The Board asked if the ePVP could accommodate molecular marker data – there are 

extra fields that could accommodate this data. The Board also commented that the 

PVPO’s ePVP experience could be shared with others such as the Seed Association of 

the Americas (SAA) countries. The Board mentioned that PVP applicants might already 

have data in an electronic format that could be provided to the PVPO instead of needing 

staff to manually enter data.
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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Seed Association of the Americas (SAA) and International Union for the Protection of 

New Varieties of Plants (UPOV) Updates

The PVPO was active in SAA meetings held in Argentina – May 2015 and Mexico –

September 2015 and participated in discussions on cooperation among SAA countries 

regarding electronic PVP application systems and the use of molecular markers. 

The PVPO has been very active in the Geneva UPOV meetings in conjunction with the 

U.S. Patent Office (PTO) as well as the Vegetable (TWV meeting - France – June 2014) 

and Molecular (BMT meeting - Korea – November 2014) meetings. 

UPOV Electronic Application System (EAS) Update

The goal of the EAS project is to develop a multilingual electronic form containing 

questions important for each participating country’s PVP applications. As a first step 

UPOV developed a prototype electronic (lettuce) form that covered all the information 

required for a PVP application for those interested UPOV countries and with questions 

translated into the relevant languages. The next steps for UPOV will include payment, 

different languages, adding other crops (potato, rose, apple, and soybean), testing 

communication with existing and external systems, and security requirements. UPOV is 

making excellent progress with the EAS for lettuce; the U.S. has requested that 

soybean be incorporated into the EAS next. The Board asked if the PTO is participating 

in the EAS – no the PTO is involved in multiple country patenting using the Patent 

Cooperation Treaty (PCT) system for utility patents however plant patents can’t 

participate in the EAS or PCT due to its application requirements.

UPOV International System of Cooperation (ISC) Proposal

The ISC proposal as put forth at UPOV focused on systematizing the filing and initial 

processing of PVP applications while reserving the final decisions on grant and term of 

the right to each UPOV member country. The initial goals of the ISC were to streamline 

international PVP filing and to maximize the effectiveness of PVP worldwide

Under this system the UPOV Office would administer the system and collect 

administrative fees. UPOV would accept an application form and technical 

questionnaire information for all selected UPOV members via its EAS. The process

would have an applicant selecting 1) the UPOV members in which to make an 

application, 2) a preliminary examination office, and 3) a DUS examination office. 

The role of a Preliminary Examination Office would be to make a determination of 

novelty and variety denomination. This would not be a DUS (distinct, uniform, stable) 

test. The role of the DUS Examination Office would be to perform specific variety DUS 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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trials or examinations and report their findings to the specific UPOV members. Each 

UPOV member would have the final decision on the grant and term. 

In order to gain a better understanding of an ISC from PVP users UPOV conducted a 

survey among 61 respondents from the International Seed Federation, International 

Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties, and 

CropLife encompassing 21 countries. There was no clear pattern from respondents on 

their potential use of an ISC. It was mentioned that the survey would need to 

encompass many more companies and countries.

The Board asked if the timing to file PVP priority is a consideration within the ISC – no, 

it was more a consideration of countries accepting each other DUS results as 

equivalent. It was also stated that each country has specific requirements such as 

having an in country representative that might not work under an ISC. 

UPOV indicated that several concerns arose following the survey around the issues of 

1) sovereignty, 2) breeder representation, 3) the number of applications to be received, 

and 4) the economic viability for UPOV. For Sovereignty - it was explained that an ISC 

would not affect the grant and protection of breeders’ rights since each UPOV member 

would decide whether to participate; furthermore an ISC should not be expected to 

result in a single DUS examination being sufficient for all UPOV members and for all 

species. For Breeder Representation – UPOV explained that survey respondents were 

predominantly looking at agricultural crops, vegetables, ornamentals, fruits – based on 

responses from 21 countries and applicants generally filing 1-9 PVP applications within 

6-10 UPOV countries. For the Number of Applications – the survey indicated that 39% 

of respondents made applications in all UPOV countries for which those varieties had 

value for farmers/growers and that this project would be Economically Viable for UPOV

since only 480 applications at 500 Swiss francs/application would be required for UPOV 

to break even. UPOV discussed the establishment of an ISC Working Group to explore 

questions and topics further.

It was mentioned the ISC would act as a venue for multiple PVP applications but that 

cost savings would arise from process streamlining and DUS examination cooperation, 

especially for asexually propagated ornamentals. It was also suggested that there 

would be a net increase in overall incoming PVP applications resulting from an ISC.

The Board recommended that the U.S. delegation to UPOV continue to support the ISC 

proposal and that the U.S. should be part of the ISC Working Group. The Board also 

discussed that molecular markers may offer a good ISC alternative to field trial DUS 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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determination and could become an international basis for DUS arising from one 

country.

The Board discussed that there are 2 unique factors for U.S. PVP – the PVPO doesn’t 

conduct DUS trials and the full PVP payment is made upon certification (no annual 

fees); an ISC may force the PVPO to change to fit into an international PVP system. 

The Board asked about the status of the U.S. lead representation to UPOV by the PTO

– and that this should be discussed with the PTO since UPOV issues focus on PVP, not 

patents. It was mentioned that there is statutory language that establishes the Director 

of the PTO office as the U.S. representative on intellectual property matters. The Board 

wanted to know if there is a MOU between the PTO and PVPO regarding UPOV 

representation – there appears to be none. The Board reiterated that it is critical that 

the PVPO participate in as many UPOV functions as possible. 

Molecular Markers in the Context of PVP

Applicants for U.S. PVP are required to distinguish their variety from similar varieties 

using one or more identifiable morphological, physiological, or other characteristics; 

under this definition - molecular markers can be considered as an “other” characteristic. 

The PVPO has not used markers as the sole determinant for distinctness, however 

some PVP applicants have used molecular markers as supplemental data to help 

distinguish their variety from other similar varieties. Molecular markers are unique 

sequences of DNA that can be found with probes that identify the discrete order of 

these DNA pieces occurring somewhere in the genetic language (genome) of a plant. 

The types of molecular markers can include isozymes, RFLP – Restriction Fragment 

Length Polymorphism, SSR -- Simple Sequence Repeat (also referred to as 

microsatellites), RAPD -- Randomly Amplified Polymorphic DNA, AFLP – Amplified 

Fragment Length Polymorphism, and SNP – Single Nucleotide Polymorphism. 

Molecular markers are identified with a complementary DNA probe that binds to a 

unique sequence of DNA

Joint PVPO/ASTA Joint Molecular Marker Subcommittee Update

Background - During the December 2014 PVP Board meeting – the Board 

recommended that “the PVPO should accept molecular marker similarities in deciding 

on distinction between varieties, in cases where the new variety is facing a phenotypic 

tie with existing PVP varieties”. The Board’s Molecular Marker Subcommittee was 

established in the fall of 2013 and merged with the ASTA Corn Variety Identification 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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Subcommittee in 2014 to form the Joint Molecular Marker Working Group (WG). The 

PVPO has asked the subcommittee to further clarify this recommendation – by 

establishing scientifically acceptable data and thresholds for the pairwise comparisons.

John Duesing summarized the activities of the WG. International and national PVP 

institutions have supported marker use as part of the PVP process since there are clear 

benefits from incorporating markers into the process. Each international PVP Office or 

Agency (e.g. France – GEVES and South Korean PVPO) is deciding how to use 

molecular markers. Determining how to use markers for PVP requires planning, 

investment, resources, and time. Furthermore, incorporating markers into the PVP 

process may require PVPO policy and protocol changes. The objective of the WG is to 

determine how to make the PVP marker process as simple as possible with minimal 

impact on the PVP applicants and the PVPO.

The value of markers in the PVP process include that they are 1) quick, precise and 

reproducible, 2) not influenced by environmental conditions, 3) additive to morphological 

characteristics, 4) able to resolve phenotypic ties, and 5) have the potential to reduce 

time / costs for applicants and the PVPO. Markers also provide a tool to judge the 

“distance” of one variety from another based on the underlying genomic condition.

Markers have the power to define differences at the genomic level for two varieties that 

appear morphologically the same. This is important since the germplasm base for 

many different crops is relatively narrow especially for varieties developed by one 

company. Markers can be added to the PVP process for use as “tie breakers” when 

morphology is inconclusive (i.e., phenotypic ties) and to prove distinctness when no 

morphological differences exist. 

The incorporation of markers into the PVP process has been discussed through the WG 

by 1) aligning on when to use markers and which markers to use, 2) defining and 

aligning on respective roles of the PVPO and applicants, 3) specifying the procedures 

and protocols for analysis, and 4) agreeing on the standards for transmitting marker 

outcomes. There will be planning and work required for the PVPO to be ready to accept 

and analyze marker data.

The WG has been focusing on a crop-specific, standard SNP marker set (on a chip) that 

is being developed based on recent and current U.S. germplasm. The WG is aligning

on 1) the percent marker difference (threshold) required for that variety to be judged as 

distinct and 2) to be judged as not “essentially derived”. It was commented that markers 

could have been proprietary for each company, but the WG is focusing on a standard 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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set of crop specific public markers. There is a plan for the recommendations to come 

from the WG for both corn and soybean by June 2016. 

It was commented that there would be different marker thresholds for each crop and 

that markers may not be beneficial for some minor PVP crops. The Board asked how 

distinctness differs with regards to essential derivation – it was answered that essential 

derivation was more important for between company differences versus within a single 

company. 

In order to establish a readiness for markers in PVP – there may need to be a policy for 

when and how molecular markers should be used for phenotypic ties between 

companies and within a company. Policy recommendations will come from the ASTA 

IPR Committee and will be communicated to the Board. Important considerations are 

that 1) marker usage for PVP should be voluntary, 2) shouldn’t be cost prohibitive, and 

3) the markers should be publicly available. The instances of morphological ties is 

becoming more common both within the U.S. and other countries because the 

morphological characteristics may be limiting. It was asked if international germplasm 

was incorporated in current U.S. analyses – no, however germplasm from outside the 

U.S. would most likely have morphological differences that could be used for distinction; 

the best use of markers is for a narrow germplasm base.

In summary markers are an important additional tool for PVP use. Markers are being 

validated for use with corn and soybean by the WG. The PVPO is already receiving 

and considering markers for soybean. Policy and protocol changes will be required to 

use/analyze markers. The PVPO needs to prepare for readiness to implement and use 

molecular markers. Reporting of markers as a percent difference from the most similar 

variety versus actual raw marker data – is the simplest way to provide a meaningful 

difference to the PVPO. 

The Canadian Plant Breeders’ Rights System and Opportunities for Cooperation

Anthony Parker, Commissioner of the Canadian Plant Breeders’ Rights (PBR) Office 

described the Canadian PBR system. In Canada the PBR holder has a right to protect 

their variety in the marketplace and receive fair remuneration (royalty) for their 

innovation. Royalties are charged from fees embedded in the price of certified seed or 

for ornamentals based on every plant sold. Increased harmonization with other PVPOs 

has encouraged foreign breeders to protect and release varieties in Canada. 

Canada’s PBR Act was first passed in 1990 and was based on UPOV 1978 convention. 

The PBR Act was amended to conform to UPOV 1991 on February 27, 2015 and 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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Canada ratified UPOV 1991 on June 19, 2015 becoming bound by the Convention on 

July 19, 2015. The PBR Office communicated the benefits these changes to producers. 

All plant species have been eligible for protection in Canada since December 1998, 

except bacteria, algae and fungi. Having PBR legislation based on a UPOV Convention 

fulfills Canada’s World Trade Organization (WTO) obligations with regards to Trade 

Related Aspects of Intellectual Property Rights (TRIPS) agreement Article 27.3(b); “an 

effective sui generis” form of protection. Canada has played an active role in the UPOV 

TWA, TWF, and TWO working groups. 

Canada has a breeder based DUS testing system but breeders can also arrange for a 

trial coordinator to conduct the testing on his/her behalf (usual foreign applications). 

Breeders conduct the majority of the DUS trials for agricultural crops whereas for fruit 

crops many DUS trials are done by trial coordinators. Most of the ornamental DUS 

trials are conducted by 2 private DUS testing companies and private DUS testing 

company specializes in potato trials. The PBR Office provides breeders and trial 

coordinators with crop specific Technical Guidelines (TG) before they initiate trials

(Canada follows the UPOV established TGs). It was commented that under its current 

requirements DUS trials must be conducted in Canada, except that one year of a 

foreign DUS trial may substitute for one of the two required Canadian trial years. 

Canadian PBR examiners visits all trials to confirm they are conducted properly and that 

the new variety is distinct and uniform (approximately 250-300 visit per year during June 

through August with about $40,000 in travel). The Examiners take observations, 

measurements and notes on the distinguishing characteristics and confirms that the 

reference varieties were appropriate. The breeders/trial coordinators also submit 

complete variety descriptions and comparative photos to PBR Office. The PBR office 

doesn’t view its function as regulatory, but rather as case workers to help applicants 

meet the requirements of the PBR legislation. 

The Canadian PBR Office also publishes Plant Varieties Journal (PVJ) quarterly which 

lists all recent grants of rights, accepted, rejected, withdrawn applications and detailed 

description with photos for all varieties in DUS trials. There is a 6 month objection 

period (novelty, DUS, reference varieties, etc.) following the publication date in the

Journal after which the application moves to the DUS phase and then another 6 month 

objection period occurs. The objection period provides an opportunity for input from 

other experts for public scrutiny; if no objections occur then the variety is eligible for 

grant of rights. In the Canadian PBR system – breeders file their application first and 

conduct DUS trials latter.
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Fees for Canadian PBR are $250 – application, $750 – examination, $500 – grant of 

rights, and $300 – annual renewal fee. The annual revenue is $800,000-900,000 and 

covers the direct costs for operations and 7 employees of the PBR office. The fees 

have not changed since 1991. The annual fee is useful since it forces the breeder into 

a decision every year about whether the variety still has value and generates about 60% 

of the PBR office’s revenue. (The annual fee is not charged during the period of 

provisional protection – but it may be charged in the future to incentivize breeders to 

move their application ahead.) Potatoes and fruit trees usually continue their PBR for 

20 years, whereas cereals only would like 6-8 years – so total annual fees collected 

vary depending on the crop. 

The number of incoming applications have been in the 250-700 range over the past 10 

years with about 70% of these from ornamentals. It was commented that Canadian 

PBR applications may have increased when enforcement was improved. The highest 

PBR application user are potato, rose, pelargonium, canola, and impatiens.

Possible areas for cooperation with the Canadian PBR Office include promoting 

intellectual property by raising awareness with breeders on the need to protect their 

varieties both north and south of the Canadian-US border (if sales are occurring in both 

countries since there is “leakage of varieties” across borders). Also it is important to 

cooperate in variety naming in that UPOV Article 20 (5) specifies that “a variety must be 

submitted to all Contracting Parties (countries) under the same denomination”. Lastly it 

may be time to look at best practices or systems of recognition to better support the 

Canadian and U.S. “breeder-run” DUS testing including expanding talk of Canada-U.S. 

cooperation, sharing DUS test results, and being a model for other UPOV countries 

regarding breeder-run DUS testing.

It was asked if DUS field trials could be visited by a Canadian examiner when the trial is 

in the U.S. or accrediting U.S. PVP examiners to visit and approve those trials for 

Canada. It was commented that the U.S. and Canada have been discussing how to 

show other countries that the breeder-run DUS testing has quality management in order 

to create confidence in those test results. The Board asked if the Canadian PBR law 

had flexibility to use molecular markers – the law does not preclude using markers to 

assist in establishing distinguishability. Currently Canada will accept molecular markers 

as supporting data, but it’s not accepted as the exclusive information. 

It was asked about the Canadian farmer’s privilege – Canada created regulation making 

r authority subservient to the legislation and in future regulations may be created that 

could put conditions or restrictions on farmer’s privilege – including an end point royalty 

system – this hasn’t been exercised yet. It was commented that there is a program in 
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Canada where farmers give up their privilege by contract – for specific wheat varieties 

with a wheat midge tolerance gene stewardship program that requires a refuge –

farmers are allowed to save seed for 1 generation and use it for 1 year – the farmers 

have shown 95% adherence. 

Canadian Plant Technology Agency (CPTA)

Lorne Hadley, Executive Director discussed the functions of the CPTA, It has a mission 

“to promote an environment within Canada where a robust and globally competitive 

framework of intellectual property protection is valued and respected” to encourage

continued research investment and sustainable innovation, benefiting Canadian 

farmers, consumers and the plant science industry. (The Seed Innovation Protection 

Alliance is a similar organization in the U.S.) CPTA was formed in 1997, it is non-profit, 

with 25 members across Canada, and it only works with field crops. Through 

monitoring, enforcement and education, CPTA finds and stops illegitimate sellers of 

protected seed varieties. CPTA’s objective is to change behavior and upon discovery of 

infringement, it reports to the rights holder, and recommends action. CPTA coordinates 

enforcement activities; it does not have the authority to enforce PBR. CPTA gathers

facts and makes recommendations regarding infringement but the responsibility /

authority to take enforcement action rests with rights holder. Damages for infringement 

– includes the damage for 2 years prior to the infringement plus court allowable costs

(investigation/consulting costs and legal fees). 

Brainstorming on the State of the PVPO and Its Future Direction

Background

The current state of the PVPO is good in that the applicant inventory is under 

control, the ePVP system is well underway, the staff is well trained, the office is 

exploring cooperation with other countries, and the PVPO is listening to users’

ideas about molecular markers. Ongoing challenges for the PVPO include 1) the 

relatively stagnant number of incoming PVP applications (450-550), 2) small 

customer base (3 key customer provide over 60% of the applications, there were 

90 different applicants in 2015), 3) continued seed industry consolidation, 4) PVP 

customers changing their IPR strategy away from PVP to patents, and 5) 

improving the credibility of U.S. PVP system. In a future state the PVPO is 

looking at new business opportunities, modification to its fee structure, 

cooperation through the UPOV ISC, and being competent and ready to 

accept/examine using molecular markers. 

The PVPO has a goal of getting from good to great and creating more financial 

stability. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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The Board members and attendees split into 4 different groups to identify 4-6 key goals 

that the PVPO should focus on strategically for the next 5 years. Each presented their 

identified goals Here is a summary of the ideas that were presented:

Group 1

- Increase PVP revenue

o Focus on public institutions – the PVPO should have a systematic plan to 

target institutions with breeding programs and functioning licensing programs

o Educate technology transfer offices on PVP and connect with agriculture

experiment stations, deans of Agriculture schools, and the Association of 

University Technology Managers (AUTM)

o Look into making IPR a part of key public institutions breeding curriculum 

especially UC Davis (Seed Biotechnology Center)

o Fee structure – evaluate if a maintenance fee can be added to the PVP fee 

structure

o Target specific crops with more opportunities – i.e. rice and wheat

o Target independent breeders – they attend Independent Professional Seed 

Association (IPSA), US Testing Network (USTN), and Independent Seed 

Testing Association (ISTA) meetings

o Get PVP into courses where independent breeders go for certification – UC

Davis – Breeding 101

o Target small company breeders who go to independent ag law firms – these 

firm often recommend patents over PVP

- Continue with process improvement –

o make U.S. PVP more amenable to breeders who want to apply in different 

countries 

o structure U.S. DUS testing to be more compatible with other countries’ 

systems

o expand molecular marker usage

- Build alliances

o Have very clear FAQs

o Make the PVP message simple

o Explain the difference between PVP and Patents

o Continue to participate in international activities – SAA, CPVO, UPOV 

meetings

o Look into developing seed markets in China, Eastern Europe, Southeast Asia

to provide advice on DUS testing and examination

o Have a US presence at UPOV Technical meetings

o Work with other USDA agencies especially FAS and ARS 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

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o Use PVP customers as advocates – “train the trainer” concept

o Leverage the PVP Board as a resource

Group 2

- Identify key PVP benefits

o PVP crops have higher value

o PVP broadens genetic diversity

- Look to way to mitigate PVP’s limitations

o Farmer’s exemption – extend contractual limits on saved seed

o Breeder’s exemption – gap on getting commercial licenses

- Assist with PVP enforcement – broaden molecular marker usage

- Virtual marking (currently used for patents) – using website to cover instead direct 

seed bag labels

- Cost effectiveness – streamline U.S. DUS testing

- Continue with cooperation and harmonization activities especially the EU and the

Americas countries – help to identify third party DUS testers that could conduct trials 

acceptable to the U.S. and other countries

- PVP education, especially about how it increases genetic diversity

- Get more involved inn IPSA, the National Association of Plant Breeders (NAPB), 

and AUTM

Group 3

Major challenges include 2-3 major applicants, IPR through patents instead of PVP, 

fees make the PVP system vulnerable

- Add asexually propagated plants to US PVP through an amendment to the PVP Act

- Change the PVP fee structure

o Tiered fee structure

o Annual maintenance fee

- Build stronger ties to seed certification

- Broaden the PVP customer base

- Provide more guidance on conducting DUS tests

- Connect breeders to existing resources (DUS testers, Agriculture Experiment 

Stations, Universities, etc.)

- Accept other country’s DUS test reports

Group 4

Envisioning the Future State of PVP (perhaps 2025)

- No next UPOV Convention, instead all countries move their laws to be UPOV 

1991 compliant

- Regional harmonization and cooperation (like the CPVO) in
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

Page# 15

o Americas

o Africa

o Asia (not much cooperation right now)

- Simple electronic filing fully deployed through UPOV or at least regionally

- Reduced applicant costs and resources required to file and to prosecute 

regionally and globally

The bottom line is increased total global PVP filings

PVPO Opportunities

- International and regional champion for / model for the use of markers and 

electronic filing

- Advocate for the ISC – not quick or easy

- Have a venue to bring regional PVPOs together to collaborate on 

molecular markers (Can all harmonization move to the US model or could 

the US PVP add something to its system to better align toward other 

countries? Some countries view the US PVP system as an office action 

that has not had a field audit – therefore the US data set will be under 

greater scrutiny.)

- Communicating / training about PVP to students, stakeholders, and 

lawyers about the process to obtain PVP – may have ASTA involvement 

to targeted stakeholders (it was mentioned that in Brazil their PVPO has 

trained professor/agronomy about PVP) – perhaps reach out to land grant 

and cooperative extension

Comments following these breakout sessions:

The PVPO asked what changes is the seed industry willing to accept for the U.S. PVP 

system to move closer to other country’s systems? There is a balance to meet –

smaller companies depend on the US PVP system not changing– instead it was 

suggested that U.S. PVP should build upon an existing system and offer alternatives 

that are equivalent. Since the U.S. PVP system is unique perhaps alternatives can be 

offered to applicants around DUS testing and the use of the database. Perhaps the 

PVPO could audit DUS tests which would require changing processes and have people 

with different expertise on staff.

The PVPO asked should it accept foreign DUS results – that would help foreign 

applicants, but might not help US applicants. It was suggested that there be mutual 

acceptance of DUS trials using contracting parties to get to the same end point without 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

Page# 16

overhauling the U.S. system (this might work with specific countries that would accept 

these results most likely Canada and the SAA countries). 

It was mentioned that Canada has used private sector DUS testers who are 

knowledgeable of both US and Canada requirements. It was suggested the PVPO 

could identify qualified persons (like the Australian PVPO) with enough experience and 

knowledge to fulfill the U.S. DUS requirements, make them known to the public, and to 

audit them as needed. 

The Board mentioned that molecular markers also have the potential to reduce costs 

and resources when the right balance is found. The Board asked at what point could

applicants move from 2 seasons or 2 locations for DUS trials to 1 season/1 location by 

using molecular markers (markers could be used to show both distinctness and 

uniformity) since this would reduce cost by half. It was commented that if the U.S. 

adopts 1 season/ 1 location this may deviate from the UPOV guidance and may move 

the US further out of alignment with other countries. 

The PVPO is looking for some “low hanging fruit” perhaps through providing DUS trial 

guidelines (i.e. how to conduct a DUS trial for U.S. PVP) to create a perception of order 

and to have audits. The PVPO can also gather information about resources (state 

universities, research stations, etc.) to conduct DUS trails on behalf of applicants. It 

was commented that the PVPO may need outreach to convince public institutions about 

the value of PVP first since they may not appreciate IPR (both PVP and patents) 

through their technology transfer offices. 

The PVPO asked what discrete tasks can the PVP Board members help with to provide 

the highest value for the Office. The Board suggested focusing on DUS testing and a

fee structure to help the application process while elaborating that PVP can be 

marketed as providing more genetic diversity. The Board also thought that asexually 

propagated plants should be considered for PVP. ASTA can help on both of these 

topics and reach out to partner associations. The Board suggested that the Office look 

to diversifying PVP applications by using its resources wisely - determine where 

opportunities are and do not invest resources if there isn’t a good chance of return on 

that investment.

The PVPO asked what can PVP Board members do individually – education and 

outreach to technology transfer. ASTA can reach out to land grant universities. PVP 

Board members can also act as spokespeople and use a standard presentation on PVP 

to address audiences during their travels. It was suggested that a communication intern 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

Page# 17

could improve the PVP outreach presentation. The PVPO asked the Board members to 

forward any presentations that it had on benefits and value of PVP.

It was suggested that the PVPO keep track of presentations made, get feedback, and 

tune-up as needed. It was also suggested that the PVPO survey applicants on what 

improvements they would like to see from the PVPO especially from universities and 

decision makers who file PVP. The Board also recommended that the PVPO include 

testimonials about applicant’s experience. Furthermore regarding presentations, the 

PVPO should look at UPOV train the trainer prepared material to explain the 

benefits/importance of PVP to breeders, farmers, and consumers – then tailor the 

presentation to US needs.

The Board advised caution about approaching and targeting universities about breeding 

/ PVP effort since many staff are called “plant breeders” even though they don’t have an 

active plant breeding program; universities continue to phase out breeding programs

therefore it was suggested to reach out to university members of the Board for 

guidance.

The PVPO asked about a proposed tiered fee structure – the Board responded that it is 

difficult to identify a small entity but it might be acceptable to have a different fee for 

non-profits. The PTO’s tiered fee approach for patents was mandated by Congress. 

The Board commented that a tiered PVP fee structure is not necessarily an incentive to 

getting PVP, but instead focus on educating about value provided from PVP. Some 

applicants have a choice – PVP versus Patents – what gives the best value added and

how can PVP’s value be strengthened. It was stated that PVP DUS field trial costs are 

a major expense when taking into account the staff, growing ground, and data analysis. 

The Board suggested that the PVPO consider giving new/starting PVP applicants an 

incentive – 50% price reduction for their first 3-5 applications. 

It was commented that university plant breeders sometime avoid intellectual property 

protection due to its complexity and apparent restrictive stigma therefore it may be 

better to sell PVP as innovation protection. The Board commented that there may also 

be a problem reaching out to state commissioners rather than university technology 

transfer offices because the commissioners don’t want intellectual property protection 

for profit, but instead want varieties freely available. There is balance between the 

political (wheat commissioner, soy commissioner, etc.) and the plant breeders. 

Universities may have a separate marketing agreement with that state’s marketing 

commission. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

Page# 18

PVP Board asked how often does the U.S. receive PVP applications requesting priority 

based on another countries filing and likewise how often does a U.S. PVP (test report) 

used for filing in another country – the PVPO rarely receives priority requests and 

Canada has been the most frequent requester (2-7 requests per year) for the U.S. DUS 

reports.

The issue of the farmer’s exemption was discussed – Canada indicated that as 

producers and the seed industry become more interested in sustainable sources of 

revenue/investment for plant breeding in specific crops (e.g. cereals), there may be 

pressure to develop a farm saved seed or end-point royalty system. It was also 

mentioned that the breeder’s exemption may be set through essential derived 

thresholds set by molecular markers. The Board asked if UPOV would recognize the 

concept of thresholds for EDV and if it would recognize a marker based threshold. 

Potentially the Americas could set a soybean marker EDV threshold. 

Following this discussion Board members voted on the 14 PVPO priorities and ranked 

them as below:

1. Manage the rollout of the molecular marker system to break PVP ties

2. Develop better FAQs on the benefits and difference between PVP and Patents

3. Fully deploy electronic PVP filing though UPOV and/or the U.S. ePVP system

4. Explore creative ways to address and mitigate the effect of PVP exemptions 

(breeder’s exemption and farmer’s exemption – possible royalty to the breeder)

5. Establish a quality management system and investigate/publicize third party DUS 

contract testers

6. Enhance the enforcement of PVP

7. Use Board member contacts for outreach

8. Explore an annual maintenance fee

9. Explore adding asexually propagated varieties to US PVP

10.Develop guidance on conducting DUS tests for US PVP

11.Capitalize on best practices and expand on them

12.Build stronger alliances and define universities to target

13.Accept DUS reports from other countries

14.Consider regulations to allow virtual labeling/marking of seed bags

Other Topics

PVPO Direct Wire Transfer or Deposit Account Options

The PVPO can provide a deposit account if its user need it. The Board

commented that direct wire transfer looked better to them and that a deposit 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

Page# 19

account might be useful for quick transfer, but it was unsure if it was needed. 

This question might be asked on a PVP survey.

PVPO Variety Name Verification/Clearance

The PVPO is verifying that there is no conflict for an applicant’s variety name 

within UPOV or at the CPVO. If a conflict does occur the PVPO notifies the 

applicant and the UPOV country. The Board asked if there was a need to check 

the PTO or Trademark database for conflicts – the PVPO does complete this 

checking when the PTO initiates a request.

Marshall Ryegrass Update

The PVPO received communications that an extension for the PVP of ‘Marshall’ 

ryegrass might be forthcoming. The PVPO presented a summary of the PVP 

activity for this variety – this variety originally received PVP (certificate# 8200179)

on June 29, 1984 after the office’s examination and finding that the variety was 

new, distinct, uniform, and stable; the PVP certificate expired on June 29, 2002 

(PVP was granted for an 18 year term under the PVP Act in place at the time of 

certification). 

PVP certificate 200400094 for the ‘Marshall’ ryegrass variety was granted again 

on February 6, 2004 based on the Consolidated Appropriations Act of 2004.

The ten year term for the second PVP grant expired on February 6, 2014. This 

was the only variety ever granted a second certificate and in effect a term 

extension by the PVPO. At the May 2014 and August 2015 Board meetings – the 

Board unanimously voted for a recommendation against this extension.

It was estimated that about 500,000 pounds of Marshall ryegrass was currently 

available on the market, with another 600,000 pounds to be harvested and ready 

for sale in the spring. The Board asked if there was a process to challenge the 

issuance of this certificate. The PVPO indicated that the certificate could be 

challenged under the PVP protest process as specified in section 91 of the PVP 

Act and also that section 44 of the law “Public Interest in Wide Usage”.

The Board discussed the Marshall Ryegrass issue further and recommended the 

following statements:

Plant Variety Protection Board Issues Strong Objection to Extension of 

Marshall Ryegrass Plant Variety Protection
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

Page# 20

The Plant Variety Protection Advisory Board is extremely disappointed 

and gravely concerned about the proposed legislative reissuance of the 

Marshall Ryegrass Plant Variety Protection certificate, for the second time 

in ten years. The variety was initially protected in 1984 for 18 years. 

Upon expiration in 2002, it should have become available to the public; 

however, the certificate of protection was legislatively extended in 2004 for 

10 years. The extended certificate expired in 2014, becoming freely 

available for public use.

Since 2014, more than a dozen entities including growers, seed 

companies, brokers and distributors have grown and distributed this 

variety legally. There are hundreds of thousands of pounds of Marshall 

Ryegrass available on the open market now and in the ground waiting to 

be harvested in late spring. The potential legal jeopardy and financial 

losses for these businesses are compelling arguments against another 

extension.

More fundamentally, the proposed extension violates the purpose and 

spirit of the Plant Variety Protection Act and seriously harms the U.S. 

intellectual property system. The Board strongly believes such an action 

will reduce the volume and diversity of available crop varieties, unfairly 

increase the cost of seed, and create an unsustainable precedent to 

damage intellectual property protection in America for many years to 

come.

The Board requests that the Secretary of Agriculture communicate these 

concerns to the appropriate Congressional authorities.

The Board recommended that a formal protest be submitted to the PVPO if the Marshall 

Ryegrass certificate were extended. Note: Based on a review of the Consolidated 

Appropriations Act of 2016 – no language was included in this law that extended 

Marshall’s PVP. 

Meeting Wrap-up and Discussion

The Board liked the broad strategic advice as well as specific recommendations. The 

Board appreciated the participation of Canada and SAA at this meeting. It was 

commented that not many countries have a formal Board meeting in order to get advice 

from stakeholders. The Board appreciated the diversity of topics – including the 2015 

accomplishments and the 2016 outlook. The Board suggested that Peter Button make 
Plant Variety Protection (PVP) Board Meeting Minutes – December 7-8, 2015

Page# 21

a presentation to the December 2016 PVP Board meeting and that Mexico and/or 

Argentina participate too. 

The Board suggested bringing forth an important topic prior to the next meeting such as 

“requests for PVP deposited seed when that seed goes off PVP” – a preprint of this 

article would be sent to the Board. The Board also suggested that the Joint Marker WG 

– provide clear technical proposals on the marker work. The PVPO plans to have full 

presentation on the molecular marker accomplishments for the next meeting.

The next Board meeting will be held in July or August via teleconference – with the plan 

to have the meeting via Adobe Connect or WebEx. 

The Board meeting was adjourned. 

Board Recommendations

1) The U.S. delegation to UPOV should continue to support the ISC proposal and 

that the U.S. should be part of the ISC Working Group

2) Manage the rollout of the molecular marker system to break PVP ties

3) Develop better FAQs on the benefits and difference between PVP and Patents

4) Fully deploy electronic PVP filing though UPOV and/or the U.S. ePVP system

5) Explore creative ways to address and mitigate the effect of PVP exemptions 

(breeder’s exemption and farmer’s exemption – with possible royalties to the 

breeder)

6) Establish a quality management system and investigate/publicize third party DUS 

contract testers

7) Issue a strong objection to Extension of Marshall Ryegrass Plant Variety 

Protection