Plant Variety Protection (PVP) Board Teleconference Meeting Minutes – May 13, 2014 

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USDA Plant Variety Protection Office (PVPO) 

Room 2068, 

USDA South Building 

1400 Independence Ave. S.W. 

Washington, DC 20250 

Board Members attending (with affiliation): 

June Blalock; 

Leticia Cabrera; Northwest Missouri State University 

Joonhyung Cho; University of North Carolina at Chapel Hill 

Harry Collins; Mississippi Farmer 

Jonathan Egilla; Lincoln University in Missouri 

Stevan Madjarac; Monsanto Company 

Corinne Marshall; Sakata Seed America, Inc. 

Salomon Montano; New Mexico Farmer; 

Dana Rewoldt; Lawyer 

Wendell Shauman; Farmer; 

Absent: Danielle Conway, Hezekiah Gibson, Patrick Kole, Larry Teuber 

USDA and AMS staff: 

Ruihong Guo, Deputy Administrator, USDA/AMS/Science and Technology 

Sharlene Deskins, Attorney, Office of General Counsel (OGC) 

Brian Hill, Attorney, OGC 

Paul Zankowski; Commissioner PVPO 

Jeff Haynes, Deputy Commissioner, PVPO 

Others Attending: 

Bernice Slutsky, American Seed Trade Association (ASTA) 

Call to Order and Opening Remarks 

Opening welcoming remarks were made by Paul Zankowski and Ruihong Guo. The 

meeting agenda was adopted. 

Follow-up on Recommendations from December 2013 PVP Board Meeting 

The recommendations and PVPO actions were 

1) The PVPO should add a paper processing fee surcharge once the ePVP system 

is fully functional. 

The PVPO explained that this recommendation and #8 will be a part of the PVP 

regulation change package to be processed during fiscal year (FY) 2015. 
Plant Variety Protection (PVP) Board Teleconference Meeting Minutes – May 13, 2014 

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2) The PVPO should develop a matrix for extension and late fees that considers the 

office request, the applicant’s needs, and the incentive for a timely response. 

The PVPO explained that only 10 extension requests occurred in the past year 

and that the need for these fees will be reduced under the ePVP system. The 

PVPO will create a matrix of extension and late fee issues. The PVPO explained 

that the fee may be changed from a flat fee to a time based fee (per month) and 

will be discussed at the next Board meeting. 

3) PVPO should develop a blueprint for outreach and look at coordinating PVP 

certification with seed certifying agencies. 

4) PVPO should develop a blueprint for harmonization of PVP grants with other 

countries. 

The PVPO is working on blueprints for both recommendations 3 and 4 and will 

have these further developed by the next Board meeting. 

5) PVPO will charge potato tissue culture certificate holders a $107 processing fee 

each time a tissue culture fee is paid. 

The PVPO implemented this fee on May 1, 2014 and changed its certificate fee 

request letter to incorporate the change. This fee can be charged in accordance 

with current PVPO regulations. 

6) A subcommittee should be formed to define and design the GEO question on the 

ST470 and seed deposit forms. 

This subcommittee has been formed and will meet in early June. 

7) The PVP Board’s marker subcommittee and the ASTA subcommittee should 

have a joint meeting. 

The Molecular Marker subcommittee and the ASTA Corn Variety Identification 

Subcommittee (CVIS) held a joint teleconference on May 12, 2014 (outcome 

described later in the minutes) 

8) The PVPO should adjust its regulations to handle postmarks, the change of 

PVPO address, fee changes, and electronic signatures. 

9) The Board will consider Chicago and other cities for a 2014 physical meeting 

location and will hold a teleconference in May 2014. 

The PVPO is considering holding the next physical meeting at either the ASTA 

Chicago in December 2014 or the ASTA Vegetable and Flower meeting held in 

Tampa, Florida in January 2015. 

PVP Office Update – Staff, Productivity, Incoming Applications, Finances, and Fees 

The PVPO is fully staffed at 13 employees. Program Analysts will continue to be 

needed to enter data from paper applications until the ePVP system is fully in place. 

The PVPO anticipates a need for more Associate Examiners with the possibility of 

Program Analysts moving into these positions. 
Plant Variety Protection (PVP) Board Teleconference Meeting Minutes – May 13, 2014 

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The PVPO has had good productivity during the first 7 months of FY14 – with 496 

applications processed and 309 new incoming applications resulting in an inventory of 

455. The number of incoming applications varied over each of the past 7 months with a 

high of 60 in April and a low of 19 in December. For FY14 soybean, corn, potato, wheat 

and pea ranked as the top incoming species. 

The PVPO revenue was $1.34 million (M) and expenses were $1.20 M resulting in a 

trust fund balance of $3.15 M – which is equivalent to a 14.6 month operating reserve. 

This will be one of the first years when the PVPO added reserves to the trust fund. The 

breakeven point where incoming applications pay for all FY14 office expenses is 

approximately 420 applications; the PVPO is expected to exceed this. The Board asked 

if this reserve was high or low; the PVPO responded that the minimum reserve is 5 

months and that the current reserve places the PVPO in very good standing. 

The PVPO discussed possible future fee changes including 1) the sale of DUS (distinct, 

uniform, and stable) reports– the PVPO currently charges $3.60 per page for a 20-40 

page report while most other International Union for the Protection of New Varieties of 

Plants (UPOV) PVP Offices charge 350 Swiss francs (approximately $395), 2) paper 

processing fee to be implemented about October 2015 when the ePVP system is fully in 

place, and 3) a per-month basis for the extension and late fees. The Board commented 

that the PVPO may want to consider a country by country fee; the PVPO responded 

that it would need to consult with its Office of General Counsel (OGC) about this 

proposal. The PVPO plans to present a full picture of fees at the next Board meeting. 

ePVP System 

The ePVP system version 2.0 will be released by May 16 for internal user testing; the 

final sprint is in process and will result in release 3.0 of the software for additional 

testing. The release version 4.0 will be available for domestic and international 

application testing including Board members. Board members will need to be level 2 eauthenticated by visiting a USDA facility with ID credentials. The ePVP system is an 

integrated application based on MS .NET MVC4 and MS Dynamics CRM 2013. 

The costs for ePVP development has been $602 thousand (K) for phase 1 (system plan 

and data migration scripts) and $1,099 K for phase 2 (development using MS .NET 

Framework 4 for external portal and MS Dynamics CRM 2013 for internal portal). Phase 

3 (support, maintenance, and upgrades) is estimated to cost $100-200 K. The overall 

total ePVP system is estimated to cost $1.9 M (less than the $2.1 M estimate from 

2012). 
Plant Variety Protection (PVP) Board Teleconference Meeting Minutes – May 13, 2014 

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The only delays that have occurred involve migrating legacy STAR data to CRM. The 

soft ePVP release is anticipated on July 1, 2014 (= version 4.0). The current vendor will 

be available for software fixes and enhancements after the testing results have been 

compiled. Software support will transition to USDA Information Technology support after 

6 months. Projected annual costs after the vendor is phased out would be $50 K for IT 

support and $24 K / year for software licensing. 

The official ePVP release will be on October 1, 2014, the start of FY 2015. All future 

FY15 applications moving forward will be examined under the ePVP/CRM system. New 

FY15 hardcopy paper applications will be entered into the ePVP system by PVPO staff. 

All prior applications will be examined using the STAR system. The new ePVP software 

rollout will be announced using a Federal Register notice in mid-September. There will 

also be a user guide and webinar that presents the basics of entering an application into 

ePVP. A feature will be available for the bulk filing of applications outside of the ePVP 

system – so that bulk filers can email or upload application information. Eventually the 

bulk feature will be a component of the ePVP system. 

The Board commented that a PVP regulation might need to be added to specify what 

the filing date would be if the ePVP system isn’t working. 

Outreach Activities 

The PVPO met with the Community Plant Variety Office (CPVO) in Angers, France on 

April 4 to discuss increasing cooperation and developing ideas to harmonize the PVPO 

and EU systems. 

Possible barriers that were identified during these meetings included: 

1) Methods for growing out DUS trials, specifically 1) the official technical 

observation of the trials, 2) official designation of reference varieties used in the trials, 

and 3) differences between the CPVO technical questionnaire versus the US PVP 

exhibit C form. 

2) US PVP Act definition of uniformity – in that variation is allowed as long as its 

describable, predictable, and commercially acceptable (the CPVO definition doesn’t 

allow for this variation) 

3) Process of variety denomination/registration – the CPVO has a formal system 

in place for naming and/or registering a variety whereas in the U.S. the variety name is 

regulated under the Federal Seed Act. In the U.S. the variety named using the name 

first used in interstate commerce (there is no registration system in the U.S.) 
Plant Variety Protection (PVP) Board Teleconference Meeting Minutes – May 13, 2014 

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The Board commented that in the U.S. uniformity is better for functional varieties. The 

Board also asked why variety denomination is a barrier – the PVPO explained that in 

the US system a name becomes fixed when the variety is first sold whereas in the EU 

the name needs to be registered before the variety can be sold. 

The U.S. and CPVO identified areas of common ground (areas where mutual 

collaboration and expertise can benefit both PVP systems) in 1) the use of electronic 

PVP application processing/databases and 2) the use of molecular markers. The CPVO 

was interested in the concept of using the U.S. database system to select better 

reference varieties for their DUS trials. Molecular markers could provide a common 

language between both the U.S. and CPVO for distinguishing varieties. The U.S. is also 

looking at its crop specific forms to see if they can be modified, streamlined, and better 

align with the CPVO forms – using lettuce as a pilot test. The CPVO was very interested 

in the U.S. accepting their DUS reports, but the PVPO needs to be assured that enough 

data is reported in the CPVO report to create a useful record for future database 

searches. 

The Board wanted to know if agreement could be made on uniformity and stability – and 

then work toward the barrier of distinctness. The Board suggested that U.S. DUS trials 

could be monitored by experts trained by the PVPO and paid by applicants to review 

and qualify the trials. 

The PVPO’s discussions with the CPVO are a component of the US Trade 

Representative’s (USTR) Transatlantic Trade and Investment Partnership (T-TIP). The 

discussions with the CPVO remain a very positive part of the T-TIP intellectual property 

rights (IPR) negotiations. The USTR IPR negotiations have focused on resolving 

differences between the U.S. and EU intellectual property systems. 

During the April 2014 UPOV meetings the PVPO also met with Australia, Canada, 

Netherlands, and New Zealand PVP Offices to discuss outreach. Australia and Canada 

have PVP systems where the breeders conduct the DUS trials similar to the U.S. but 

officials from their offices evaluate the trials. The PVPO explained that Australia 

“deputizes” experts to review DUS reports/trials as qualified persons. The Board 

suggested that the PVPO could look into certifying technicians in coordination with the 

Canadian PVPO. The Board asked if Canada would be able to fully accept US DUS 

reports. The PVPO responded that we may consider a pilot system to certify the 

breeder based DUS trial to concur with the Canadian system. The Board asked if the 

USDA National Center for Genetic Resources Preservation (NCGRP) could be tasked 

with qualifying DUS trials – it was explained that NCGRP may not have adequate staff 

to evaluate trials. 
Plant Variety Protection (PVP) Board Teleconference Meeting Minutes – May 13, 2014 

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The Board commented that some applicants only want U.S. PVP and not international 

PVP – so maybe a two tiered system would be better – 1) those requesting only U.S. 

PVP and 2) those requesting U.S. and foreign PVP. The Board commented that the 

Netherland PVPO will collect U.S. exhibit C PVP data for a fee. The Board also asked 

what would be the objective of a pilot study to have third party observers if the PVPO 

wasn’t moving to the EU system. The PVPO commented that the ongoing pilot study 

with lettuce is comparing the U.S. exhibit C form with the CPVO lettuce form – to 

determine if the U.S. needs to ask for all that data – the PVPO is examining the exhibit 

C process to determine if everything is necessary – and can it be streamlined. The 

Board commented on the system of streamlining corn exhibit C data several years ago 

– and the impact of that streamlining. 

The PVPO plans to target future outreach at two specific areas – seed certification and 

the Association of Official Seed Certifying Agencies (AOSCA). The PVPO also plans to 

conduct outreach at the National Association of Plant Breeders (NAPB) meeting in 

August 2014 and will have a booth. 

UPOV Update 

1. UPOV is moving forward in developing a centralized Electronic Application Filing 

system and the U.S. PVPO is planning a central role in our requirements within 

this system. 

2. The U.S. plans to participate in the UPOV Biochemical and Molecular 

Techniques and DNA Profiling in Particular Working Party (BMT) to be held in 

Seoul, Korea in November 2014. 

3. During the April 2014 meeting the UPOV Council approved the legislation of the 

African Regional Intellectual Property Organization (ARIPO) – this would create 

an organization similar to the CPVO and expand UPOV sanctioned intellectual 

property rights to ARIPO’s 18 member countries. 

Molecular Marker Subcommittee Update 

The chair of the molecular marker subcommittee reported on their activities. The goal of 

the subcommittee is to help the PVPO and PVP applicants develop a consistent means 

to distinguish varieties using markers in conjunction with morphological/physiological 

characteristics. The subcommittee is looking at different models to incorporate 

molecular data into PVP applications so the PVPO can better use this data. 

The subcommittee discussed a pilot study on corn where correlation between molecular 

data and PVP morphology data was evaluated. The study found the correlation wasn’t 

as significant as desired; however the concept of using genetic distances relative to a 

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Plant Variety Protection (PVP) Board Teleconference Meeting Minutes – May 13, 2014 

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standard set of inbred varieties may be a useful means of characterizing a variety. The 

subcommittee held a joint meeting with the ASTA Corn Variety Identification 

Subcommittee (CVIS) to determine the best approach to analyze this data. 

The concept of comparing a variety’s genetic distance from standard inbred corn 

varieties was discussed. Using this genetic distance model the PVPO may be able to 

determine that a variety is distinct from others when morphology alone cannot. Under 

this system applicants would not be required to provide molecular data, but molecular 

data could be supplied as needed. The subcommittee is also trying to determine how 

this information can stored in a database... 

A summary of this model could be presented at the UPOV BMT meeting in November 

2014 as a new concept to build confidence in the use of markers and morphological 

characteristics. The subcommittee is also looking at markers in soybeans, lettuce, and 

peas. 

The Board commented that it may be useful to look at tomato molecular markers. 

Other Issues 

Non-deregulated events 

The PVPO reported that some PVP applicants want to file PVP on varieties 

containing genetically engineered trait(s) not fully deregulated by USDA Animal 

and Plant Health Inspection Service Biotechnology Regulatory Services (BRS). 

Handling and storing seeds of these varieties would require BRS movement 

permits. PVP Regulation 97.7 part (d) allows a waiver for making the PVP seed 

deposit within 3 months for good cause. The PVPO decided 1) the issues of 

permits for these regulated varieties, 2) notifications for movement, and 3) 

storage / added complexity / exposure constituted good cause and granted a 

waiver so that seed of non-deregulated events need not be shipped to NCGRP 

until deregulation occurs. 

The Board wanted to know what would happen if BRS never deregulated the 

event - the PVPO would look into this issue. The Board commented that the 

PVPO might require extension fees until the seed is provided to the PVPO. The 

Board also commented that NCGRP could store seeds of a regulated event. The 

Board suggested that this topic be considered at the ASTA Seed Industry forum 

to provide the PVPO and applicants with a menu of possible options. 
Plant Variety Protection (PVP) Board Teleconference Meeting Minutes – May 13, 2014 

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Marshall Ryegrass 

The PVPO has received communications that a third 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 

which specified 

“That, in the case of the term of protection for the variety for which 

certificate number 8200179 was issued, on the date of enactment of this 

Act, the Secretary of Agriculture shall issue a new certificate for a term of 

protection of 10 years for the variety, except that the Secretary may 

terminate the certificate (at the end of any calendar year that is more than 

5 years after the date of issuance of the certificate) if the Secretary 

determines that a new variety of seed (that is substantially based on the 

genetics of the variety for which the certificate was issued) is commercially 

viable and available in sufficient quantities to meet market demands.” 

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. 

During the PVP Board meeting of May 2004 the members issued this 

recommendation 

The Plant Variety Protection Advisory Board expresses its grave concern 

over the Marshall ryegrass issue regarding the legislated private 

reissuance of a Plant Variety Protection certificate, after the original PVP 

certificate for this variety had expired. The Board believes this practice is 

contrary to Section 131 of the Plant Variety Protection Act and creates 

significant risk to innovation by undermining encouragement for research 

and investment by creating uncertainty of future commercial opportunities. 

The Board believes such a practice will greatly reduce the volume and 

diversity of available certified crop varieties, and unfairly increase the cost 

of seed to society. The Board suggests the PVP Office and the Secretary 

of Agriculture communicate these concerns to the appropriate 

Congressional authorities. 
Plant Variety Protection (PVP) Board Teleconference Meeting Minutes – May 13, 2014 

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The Board commented that in 2004 there was a great deal of opposition from 

most of the seed industry. The Board felt that the 2004 extension set a bad 

precedent and that the foundation of intellectual property protection is that the 

developer of a new variety gets a fixed period of protection in exchange for 

making that variety publically available after the PVP expires. The Board 

commented that this variety was developed by Mississippi State University and 

that they were opposed to having the PVP extended in 2004 and is opposed to a 

2014 extension. The 2004 extension (and possibly the 2014) extension) was 

promoted by the person with marketing rights for ‘Marshall’. The Board was 

concerned that another extension may take the U.S. PVP out of compliance with 

UPOV. It was noted that ASTA and the NAPB have both sent letters to Capitol 

Hill regarding this issue. 

The Board proposed the following recommendation: 

The Plant Variety Protection Advisory Board expresses its grave concern 

over the Marshall ryegrass issue regarding the legislated private 

reissuance of a Plant Variety Protection certificate, for the second time in 

approximately ten years. The Board believes this practice is contrary to 

Section 131 of the Plant Variety Protection Act and creates significant risk 

to innovation by undermining encouragement for research and investment 

by creating uncertainty of future commercial opportunities. This legislation 

is also counter to the purpose and spirit of the PVP Act. The Board 

believes such a practice will greatly reduce the volume and diversity of 

available certified crop varieties, and unfairly increase the cost of seed to 

society. The Board proposes the PVP Office and the Secretary of 

Agriculture communicate these concerns to the appropriate Congressional 

authorities. 

The Board unanimously voted for this recommendation. 

The PVPO discussed the next physical meeting venue at either the ASTA December 

2014 Chicago meeting or the ASTA January 2015 Vegetable and Flower Tampa 

meeting. The PVPO will get feedback from the Board on Chicago or Tampa.