Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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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): 

June Blalock; USDA, ARS, Office of Technology Transfer 

Leticia Cabrera; Iowa Western Community College 

Joonhyung Cho; University of North Carolina at Chapel Hill 

Harry Collins; Mississippi Farmer 

Danielle Conway; University of Hawaii at Manoa 

Jonathan Egilla; Lincoln University in Missouri 

Hezekiah Gibson; United Farmers USA/Gibson Farm 

Patrick Kole; Idaho Potato Commission 

Stevan Madjarac; Monsanto Company 

Salomon Montano; New Mexico Farmer; 

Dana Rewoldt; Lawyer 

Wendell Shauman; Farmer; 

Larry Teuber; University of California, Davis 

Absent: Corinne Marshall; Sakata Seed America, Inc. 

USDA and AMS staff: 

Anne Alonzo, AMS Administrator 

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

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

Paul Zankowski; Commissioner PVPO 

Jeff Haynes, Deputy Commissioner, PVPO 

Others Attending: 

Marymar Butruille, Monsanto 

Bryan Savoy, Monsanto 

Ron Ferris, Monsanto 

Fawad Shah, AMS Seed Regulatory and Testing Branch 

Stephen Smith, DuPont Pioneer 

Call to Order, Introductions, and Opening Remarks 

All those present gave a brief introduction and background. Opening remarks were 

made by Ruihong Guo and Anne Alonzo about the Board, the meeting’s topics, and the 

advice desired from this Board. It was mentioned that the Plant Variety Protection 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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Office (PVPO) made great accomplishments in application processing and that AMS 

was looking for the Board to provide guidance on molecular marker use, harmonizing 

with other countries’ PVP systems, and the electronic PVP application system. It was 

also commented that the current Board is extremely diverse, in respect to geography, 

ethnicity, and professional backgrounds - and could be considered as a model advisory 

committee for other USDA committees. 

The meeting agenda was adopted. 

The PVPO explained the function of the Board according to the PVP Act – 1) provide 

guidance on PVP regulations, 2) make advisory decisions on all appeals to the 

Secretary, and 3) advise the Secretary on questions regarding making varieties open for 

public use. 

There were no appeals to the Secretary 

Review of PVP Application Processing Procedures 

The PVPO presented how PVP applications are processed: 

1) PVP Program Analysts receive the application and funds, and process the 

preliminary application information. 

2) PVP Examining staff confirms that the application variety is new, uniform, and 

stable and conducts/confirms the database distinctness search. The Examiners 

write an examination report that concisely summarizes this determination. 

3) Deputy Commissioner and Commissioner perform the Quality Assurance 

reviews of the application and the examination report–and make the final 

assessment/recommendation for certification. 

4) Program Analysts request the certificate fee and move the certificate through 

the printing/signature/mailing process. 

PVP Finances, Trends, Projections, and Fees 

The PVPO presented the revenue, expenses and profit/loss for the past 10 years –

revenue ranged from $1.3 to $3.4 million and expenses were $1.2 to $3.1 million which 

resulted in a maximum fiscal year loss of $332,000 to a fiscal year profit as great as 

$1.3 million. The Board asked if expenses were reduced when the PVPO moved to DC 

- expenses were reduced by 1) $150,000 annual rent savings and 2) PVP staff 

departures with no position backfilling. The losses in 2011 through 2013 were mostly 

due to the costs of the Business Process Re-engineering (BPR) project in 2011 and the 

electronic PVP (ePVP) application / database development in 2012/2013. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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A graph of revenue and expenses showed that the PVPO was profitable over the past 

10 years with only minor losses. For the current year the highest expenses are 

salary/benefits and the ePVP system. A comparison of revenue and expenses for 2014 

showed only a $28,000 profit without much leeway for additional expenses. The Board 

asked about the cost of the ePVP system – it was explained that most charges for the 

system would be incurred in 2014 and that future costs would be less. 

In 2014 - year to date the office received 62 applications (= $272,000) and 215 

certificate fees (= $165,000). This revenue has covered the PVPO expenses to date. 

Major expenses in 2013 and 2014 were the ePVP costs and salary/benefits including 

awards to PVP staff. Expected revenue for 2014 would come from applications ($1.97-

$2.23 million) and about $500,000 from certificate fees. It was further explained that 

costs such as salary/benefits/within grade increases are fixed and are out of 

management’s control. What-if scenarios were discussed with assumptions of the 

PVPO receiving 300 to 650 applications and issuing 700 to 900 certificates. 

The PVPO explained that when applications are received most of the money is paid 

upfront without the work being completed; due to this the PVPO has banked money 

from received/uncompleted applications. The PVPO operates like a business by 

retaining extra money in its Trust fund and withdrawing money for special projects such 

as the BPR project and the ePVP system. 

The current PVP fees were presented in order of occurrence - the application 

/examination and certificate issuance fees are the most common. The PVPO discussed 

ideas for changing some of the fees such as adding a time basis (per month) for both 

the extension and late fees. Currently the late fee is $41 for a delayed response to an 

office action (the late fee is payable when a response is at least 1 month and up to 9 

months late) and similarly an extension for an office response request is $89 with typical 

extension of 6 months to 2 years. The PVPO proposes having both of these fees 

changed to a per month basis. The PVPO is also proposing a $500 paper processing 

fee once the ePVP system is successfully working - as 1) an incentive to use ePVP and 

2) in order to speed up application processing for both applicants and the PVPO. 

Currently application data is rekeyed by PVP staff into the STAR database system; the 

ePVP method would avoid PVPO data entry mistakes and reduce PVPO’s labor needs. 

The Board commented that the time based extension fee may need to be re-evaluated if 

an applicant needs to grow a variety for another year in order to provide information that 

is required by the PVPO. The Board also commented that the paper processing 

surcharge may need to have a 2-3 year sunset clause whereby paper applications are 

no longer accepted. The Board questioned the amount of the $500 paper processing 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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fee – the PVPO responded that this was an estimate but it could be better calculated by 

looking at the time for PVP staff’s data entry and processing. The Board commented 

that some applicants will never want to electronically file, but if the PVPO stops 

accepting paper applications those applicants will learn the electronic system. The 

Board also suggested that the PVPO raise the total application fee by $500, but offer a 

$500 discount for electronic filing. The PVPO commented that that it might be more 

difficult to raise the total application fee instead of adding a new fee. The Board asked if 

the paper surcharge would apply to other activities such as filing an extension by paper 

- the PVPO responded that it would need to look at all paper based responses and 

evaluate what responses might incur this fee. 

The Board suggested that the time period for the extension and late fees might be per 

month or per quarter. The Board asked how long is the standard grace period for 

information requested by the PVPO – it’s 90 days for the first office inquiry and 30 days 

for a second inquiry; however for the certificate fee request the grace period is one 

month but is payable up to 9 months late. The Board wanted to know why applicants 

request extensions – typical extension requests are for more time to 1) grow a variety 

and provide better descriptors, 2) better analyze a varieties data, and 3) finalize a 

variety name. The Board indicated for a month-based extension fee the PVPO needs to 

consider what the office needs versus what the applicant can provide–a time period 

basis may be appropriate if the applicant’s justification for the extension is not 

reasonable. It may be best to develop a matrix for extension and late fees that 

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

response. 

The Board considered different scenarios that would provide an incentive for applicants 

to respond including – 1) prepaying the certificate issuance fee with the application fee 

at a reduced rate instead of paying separately, 2) removing provisional protection if a 

timely response is not provided, 3) developing policy about restricting protection due to 

a lack of response, and 4) greater utilization of the revival fee for abandoned 

applications. It was suggested that the PVPO could better reach out to applicants who 

are non-responsive by e-mail and paper as well as by phoning. 

It was concluded that there was support by the Board for the $500 paper processing 

fee, but that more work was needed to justify the time based extension and late fees. 

PVP 2013 Accomplishments 

From 2008 to 2012 the PVP application inventory increased from 745 to up to 1,208. 

The inventory was reduced to 642 in 2013 by increased examining efficiency. 

Application processing was increased by using Associate Examiners and streamlining 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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processing methods. The examining staff was reduced by 2; for a total examining staff 

of 4 Examiners and 2 Associate Examiners. During 2013 over 900 applications were 

processed and more than 831 certificates were issued. The Board asked what the 

oldest species were in the current inventory – corn is the largest part of the oldest 

applications. 

Also in 2013 the PVPO 1) developed an outreach plan that focuses on increasing PVP 

awareness, 2) completed phase 1 of the ePVP database project (assessment of all crop 

and tracking data for the new system), and 3) initiated ePVP phase 2 (fully functional 

system - scheduled to be completed in the summer of 2014). 

The Board was impressed by the speed of PVP application processing and the 

accomplishments of 2013–they indicated US PVP efficiency is a good example to 

present to other countries to showcase what can be achieved. 

PVP 2014 Business Plan 

The PVPO presented its business plans for 2014 with five major categories – 1) 

Manage PVP Applications Actively; 2) Leverage the PVP Board’s Technical Resources 

to Address Technical Challenges; 3) Promote the Plant Variety Protection Office as the 

Worldwide Leader on Protection of New Plant Varieties; 4) Increase Incoming PVP 

Applications; and 5) Launch the ePVP System. 

For 2014 the PVPO reduced its processing goal to 700 applications in order to allow the 

staff to work on other projects including outreach and ePVP. In 2014 the PVPO plans to 

process all applications older than 2011 before the middle of FY2014 (=March 31). By 

2015 the goal will be to process and issue applications within a year of filing. 

The PVPO plans to increase outreach for vegetable and flower applications by 

participating in venues such as the American Seed Trade Association (ASTA) 

Vegetable and Flower and the National Association of Plant Breeders meetings. The 

Board also suggested that the PVPO look at meetings such as the American Society of 

Horticultural Science (ASHS) to promote PVP. 

Brainstorming - How to Increase Awareness of PVP 

The PVPO and Board brainstormed on ideas to increase the awareness of PVP as a 

means of increasing new applications. 

The Board suggested that the PVPO consider producing a video (YouTube or other 

format) that presents the Office’s mission, its objectives, and provides a PVP overview–

this video could be displayed at meeting’s attended by the PVP staff. The Board also 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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suggested looking to social media (Facebook or LinkedIn discussion groups) to promote 

PVP. Another avenue for outreach might be bringing members of the Plant Breeding 

Working Groups of the ASHS and the American Society of Agronomy (ASA) into the 

PVP Board either as members or as observers. It was also suggested that the PVP 

offer an online course or webinar on PVP that could be provided to universities and the 

public. 

It was suggested that the PVP list reasons why a small/medium breeders might pursue 

getting PVP. i.e., what’s in it for them, and how can they make their breeding efforts 

more attractive in the marketplace? If breeders obtains PVP certificate, then they have 

certain choices compared to when they do not. PVP Board members might also be 

able to present a PVP overview presentation to students or community members. 

The Board commented that the concept of “why PVP” is more important than “PVP 

what” or “how to PVP”. The Board thought the issues of “what is a variety” from a 

genetic plant breeding standpoint needs to be clarified relative to its intellectual property 

protection along with the involvement of seed law and seed certification. The promotion 

of the entire seed system may be a good way to promote PVP. The Board questioned 

what determines a variety’s distinctness versus what gives it legal protection and is 

there legitimacy for the process that proposes a variety. The Board thought that a PVP 

video may be a good method of promoting PVP to state seed associations. An observer 

suggested that an introduction on where food comes from may be an overall better 

introduction rather than how to protect your variety. In addition to where food comes 

from, topics on nutrition, environmental sustainability and health may be critical. The 

Board also considered reaching out to students and indigenous communities relative to 

section 44 of the PVP Act to declare a variety open to public use–indicating that no 

other country or intellectual property statute has as compelling avenue to make a variety 

available for the public good–or to promote awareness about PVP. 

The Board suggested a system where small/medium size breeders could try the PVP 

system, perhaps at a reduced or graduated fee scale. The Board thought that the PVPO 

might consider a micro / small / medium / large entity fee scale such as the patent 

system–in order to better encourage all potential PVP customers. 

The PVPO presented a summary of the most frequent PVP filers with DuPont/Pioneer 

and Monsanto at the top, as well as the USDA, Rutgers University, and University of 

Georgia–representing about 73% of applications filed in the past 10 years. The PVP 

application trend for ‘the most incoming crops’ was 25% corn, 23% soybean, 10% 

wheat, 5% potato, and 4.5% lettuce. The Board commented that it was interesting that 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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wheat ranked as number 3 – perhaps using PVP as the primary means of getting wheat 

seed certification. 

The Board discussed a vision of PVP relative to seed certification. When a new variety 

is developed there are certain tasks including: 1) naming the variety, 2) be sure the 

breeders developed their variety, and 3) gathering characteristics of the variety for seed 

certification or for PVP application filing. Seed certification can happen through several 

different mechanisms: 1) Variety review boards, 2) state seed certification agencies, 3) 

PVP certification (but the certification agencies may need additional characteristics 

beyond PVP), and 4) OECD. A seed certified variety has no intellectual property 

protection– so that either PVP and/or a utility patent would be needed if protection is 

desired. 

Seed quality is ensured by registered seed technologists working in certification 

agencies under the umbrella of Association of Official Seed Certifying Agencies 

(AOSCA) or the Society of Commercial Seed Technologists (SCST) in the U.S. and the 

International Seed Testing Association (ISTA) globally. These organizations verify seed 

germination percentages, that the variety is true to type (i.e., all the same species or 

variety) and is true to the characteristics of the variety. Seed certification agencies are 

private non-profits, state departments of agriculture, or crop improvement associations. 

Seed certification involves breeder seed, foundation seed, registered seed, certified 

seed–with all stages having specific certification standards. Farmers are interested in 

buying registered seed which they can plant under precise standards to produce 

certified seed, which is sold at a premium over uncertified seed. Certified seed sells at 

the premium price because of the standards under which it grew and its tracability. A 

Board member mentioned that for wheat–PVP may be an important avenue to seed 

certification (with intellectual property protection as a side benefit). The Board discussed 

the concept of title 5 of the Federal Seed Act (FSA) and the requirement that the variety 

be sold as certified seed with a specific name only. In conclusion seed certification is 

linked to PVP certification and may be an important alternate avenue for new PVP 

applications.

The Board also commented that the U.S. PVP system ultimately contributes to the 

public domain germplasm diversity pool. Whenever a PVP certificate expires its 

germplasm (and any parents used to produce it) becomes publicly available to use and 

propagate. The U.S. is one of the few countries to make this germplasm available at 

the end of the PVP process. The Board emphasized that the U.S. PVP system provides 

breeders with a limited period of protection in exchange for making that germplasm 

available to the public. The Board also commented that a PVP certificate has better 

value over utility patents in that it establishes a priority document for getting a variety 

protected internationally; which cannot be done with a utility patent. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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The Board discussed the hostility that is occurring toward intellectual property rights in 

copyrights, trademarks, and within the courts. Intellectual property organizations have 

responded with public relation campaigns to explain why intellectual property matters, 

has value, and creates value–perhaps the PVPO could piggyback on these efforts. The 

Board commented that it may be useful to educate the public through an awareness 

campaign that focuses on PVP’s role in increasing public domain germplasm. An 

observer commented that the PVPO can also provide plant breeding education and 

show that most gains in plant yield comes from traditional breeding. 

Blueprint Ideas for Outreach 

1. Video showing PVPO’s mission and why PVP is important 

2. Social media – Facebook, Twitter, LinkedIn 

3. Webinar or online PVP course 

4. Reduced fee depending on the applicant size 

5. Linkage to seed certification process 

6. Discuss “why obtain PVP” not “how to obtain PVP” 

7. PVP’s place in world food security, sustainability and how varieties can be 

declared open for public use 

8. PVP germplasm contributing to the public domain germplasm diversity pool (PVP 

germplasm is publically available upon PVP expiration) 

9. Look to IP organizations public relations campaign as a way to promote PVP 

International PVP Harmonization and Recognition 

The PVPO discussed that the U.S. and many other countries separately examine new 

varieties for PVP eligibility and issue PVP. In order to obtain PVP rights an applicant 

must file in each country where protection is desired. The only exception is within the 

European Union (EU) where one application can be filed at the Community Plant 

Variety Office (CPVO) and one examination/grant of PVP rights would cover all the EU 

member countries. The PVPO is exploring whether the U.S. PVPO can enter into 

agreements with other countries whereby they accept/grant PVP based on the U.S. 

PVP examination and reciprocally the U.S. would accept/grant PVP rights based on 

another country’s PVP examination. 

The Board asked the PVPO how far communications have progressed with other 

countries. The PVPO responded that discussions were at the concept stage, and 

focused on how the U.S. PVPO determines DUS (distinct, uniform, and stable). The 

Board commented that other country’s standards for uniformity and stability may be 

different from that in the U.S. The PVPO indicated that the standards for uniformity in 

the U.S. are based on section 42 of the PVP act which defines a variety as uniform “in 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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the sense that any variations are describable, predictable, and commercially 

acceptable.” This is very different from the way other countries define uniformity. 

A global PVP harmonization system would potentially increase U.S. PVP application 

filings since applicants would save money and obtain protection in multiple countries 

through a single filing. This system could also reduce U.S. PVP filing with applicants 

migrating to whichever system is the least expensive and assures them the greatest 

likelihood of PVP issuance. 

The Board asked if the PVP fees would remain the same under a system where another 

country did the PVP testing. The PVPO responded that it would need to consider what 

fees to charge when another country did the PVP testing. The Board also asked how 

other country’s testing could be incorporated into the PVP crop databases. The PVPO 

responded that the U.S. would accept another country’s PVP determination as 

equivalent to a U.S. determination and may not incorporate another country’s data into 

the U.S. databases. The Board commented that the seed industry may not be 

comfortable with U.S. PVP grant based solely on another country’s PVP determination. 

The PVPO focused on 2 main questions: 1) is the industry comfortable with the U.S. 

accepting other country's PVP system as equivalent to the U.S. PVP system and 2) 

what should be done with another country’s data – should this DUS data be 

incorporated into the U.S. PVP database? 

The Board asked how the PVPO would manage variety naming since a variety may be 

marketed under different names in different countries. UPOV requires disclosure of all 

the names that a variety is sold under. The Board said that in potato a new variety 

might be marketed under an old variety’s name in order to main brand recognition–for 

example only 20% of ‘Yukon Gold’ marketed potatoes are really the ‘Yukon Gold’ 

potatoes–they may also include ‘Yukon Gem’ and other improved varieties. 

The Board thought that PVP recognition may be accepted based on the DUS 

determination but that variety registration may not be accepted and would be required in 

each country. 

When the PVPO asked if harmonization would be good for the U.S., the Board’s 

responses were mixed–with indications that harmonization may be beneficial for small 

individual public sector breeders who may save money if other countries accepted U.S. 

PVP grants. The Board explained that it is often expensive to file in multiple countries–

some of which require an agent in that country to handle materials and quarantine. 

Additionally the Board emphasized that priority is an important benefit of harmonization. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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The PVPO discussed the concept where PVP would be granted in the U.S. and no 

other fees would be required to get PVP in another country and likewise if PVP were 

granted by another country no other fees would be collected by the U.S. The Board 

responded that under all intellectual property protection system everyone pays 

regardless of who issues the grant. The Board suggested that the PVP fees could be 

reduced for a non U.S. PVP grant. The Board debated the justification and means for 

charging the filing and certificate fees. 

The Board explained that PVP provides an intellectual property right to exclude others, 

and as such equivalence as occurs with organic regulatory standards doesn’t 

necessarily apply. The legal right to exclude others must be granted in every country 

separately. 

The Board reasoned that the focus of harmonization should not be on saving applicants 

money, but rather on saving applicants time. The Board commented that harmonization 

could also provide applicants with risk reduction and leveraged certainty in getting PVP 

grants. The Board suggested that quality controls could be incorporated into a 

harmonization agreement with a mechanism to check the quality of a country’s PVP 

system. 

The Board proposed that both country’s application requirements and minimum 

standards (i.e., what is being asked from applicants) would be a key aspect of any 

harmonization negotiation. The PVPO suggested we approach this from the 

perspective of–we have X ways of examining but you have Y ways of examining–

intellectually we agree that both methods get us to the same goal. 

The Board introduced the concept of Patent Cooperation Treaty (PCT) filing, where a 

PCT application is filed in a receiving country’s office (with applicant selection of the 

other countries where the patent rights are desired). Examination of the PCT 

application takes place within 30 months and an examination report is produced by the 

receiving country. This report is reviewed by the applicant’s selected countries – each 

of these countries has the option of granting rights or asking for more information/ 

examination. Under PCT there is a first fee for recognition and a priority date, but then 

a filing fee is charged in each separate country in order to reserve patent rights. PCT 

costs more than filing in each country separately – but is far less work. 

The Board commented that UPOV has a means of purchasing DUS test results from 

other country’s PVP offices–the PVPO indicated that the U.S. does this with Canada 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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and subsequently Canada reduces its applicant requirement for the years of DUS trials 

from 2 to 1 year. 

In response to the board’s concern that U.S. applicants would need to increase the 

number of traits provided, the PVPO explained that this was not the intention, but rather 

to get other countries to accept the U.S. PVP system. The PVPO explained that 

negotiation on the technical aspects will be very important; especially looking toward a 

state run grow-out system versus U.S.’s breeder based system. The PVPO stated that 

it worked on a side-by-side comparison of various PVP systems to see where the 

difference occurs. This comparison would be important to identify areas of technical 

difficulty and may need to be negotiated. The Board commented that the EU will 

probably insist on maintaining its variety registration system. The PVPO indicated that 

some parts of the negotiation may be out of scope such as the variety registration. 

The Board commented that it will be important to know what is being asked for by each 

country before sharing data; the overall goal is to harmonize international standards and 

to facilitate trade. The Board also commented that some examination work, such as 

data entry into the U.S.PVP database would need to be done with a variety granted 

PVP by another country so that the variety doesn’t disappear “under the radar”. 

Currently the PVPO has discussed harmonization with the CPVO, Australia, and 

Canada; both Australia and Canada have a breeder-based PVP testing system whereas 

the CPVO is a state-run testing authority. The PVPO discussed different levels of 

harmonization that range from sharing data, non-binding acceptance of examination 

results, binding acceptance of examination results, and full equivalent recognition. The 

U.S. PVP crops would coincide with about 25% of the crops examined for Australia and 

Canada - with their remaining 75% being asexually propagated plants that are protected 

by plant patents in the U.S. The CPVO was most interested in learning more about the 

U.S. database distinctness search–especially for managing their variety collections. 

The Australian PVP system follows the UPOV technical guidelines very closely and this 

may be a requirement for future harmonization. Crops for harmonization with Canada 

may include cereals (wheat, barley, oats, rye, triticale), oilseed (canola and soybean), 

potato, and pulses (lentils, dry beans, dry peas). 

UPOV is working on a harmonized electronic application form that would enable 

applicants to file a UPOV form and indicate which countries they want to file in. Each of 

these countries would then receive a PVP application translated into their language. 

The initial UPOV form would involve lettuce, potato, rose and apple. The Board wanted 

to know if the U.S. Patent and Trademark Office (PTO) would be involved in the form 

testing, but the PVPO said no. The Board suggested that a higher level harmonization 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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might be needed with the PVPO and the PTO. Also the ISF has asked UPOV to look at 

a PCT like PVP system. 

Harmonization Blueprint Ideas 

1. Establish the minimum requirements for recognizing each PVP system. 

2. Determine what is in-scope versus out-of-scope (variety registration). 

3. Conduct a side-by-side comparison of the U.S. PVP versus harmonizing country. 

4. Evaluate a PCT like system. 

Potato Tissue Culture Storage and the PVP Fee Collection 

The PVPO summarized the issue from the July 2012 PVP Board meeting, during which 

it was proposed that potato PVP owners must deposit a voucher specimen of their 

germplasm in a public depository. Most potato tissue culture specimens are stored at 

the NCGRP; applicants are charged $2,400 by NCGRP during the life of the PVP 

certificate to recover tissue culture storage and maintenance expenses. NCGRP 

estimated that the true costs based on its expenses is $2,571, with most of the costs 

incurred at year 1 and are due to labor. NCGRP explained that they could accept the 

full $2,400 up front if the inflow of potato deposits was consistent each year so as to 

maintain a continual money stream. 

The PVPO currently charges $100 for NCGRP transaction handling—with the payment 

either as a lump sum of $100 or as 4 incremental payments of $25 at years 1, 6, 11 and 

16 (NCGRP receives $900, $500, $500, and $500). The PVPO explained that the 

current $25 processing fee is not enough to recover its actual costs and proposed to 

collect $205 (calculated based on 2 hours of employee time) each time the fee is 

processed on behalf of the NCGRP. (A Board member looked at other possible potato 

depositories, but their costs may be similar to NCGRP). NCGRP explained that they 

would prefer receiving the $2,400 up front since $2,164 of the expense occurs at year 1, 

and if an applicant abandons their certificate at year 6, appropriations would actually 

subsidize the remaining $1,264 of expenses due. 

The Board commented that potato applicants should pay at least the actual NCGRP 

costs. The Board also commented that two hours of PVPO employee time to process 

the handling fee seemed too high and that with the ePVP system this labor would be 

reduced. The PVPO suggested that the $205 fee per payment be reduced to $107 per 

payment (this was based on section 97.175 of the Regulations and Rules of the 

Practice that allows $107 per employee hour) for one hour of processing. The Board 

discussed this proposal and unanimously recommended that the PVPO charge $107 

each time the tissue culture fee is collected. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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ePVP System 

The electronic PVP (ePVP) system is being developed in 3 phases using the contractor: 

C3 Systems Inc. Phase 1 involved developing scripts to migrate data from the STAR 

database to MS SQL Server and was completed in 2013. Phase 2 is the development 

of the external user web portal and Customer Relationship Management (CRM) internal 

user management software; it is expected to be completed by summer 2014. Phase 3 is 

training and maintenance of the system. 

ePVP will cover all the parts of the current paper PVP application via web based entry, 

and will provide users with real time notification of any submissions for an application or 

amendments. The system will provide interactive feedback as an applicant fills in the 

application form, and a preliminary finding of a variety’s distinctness may be possible 

instantaneously when a critical amount of information has been provided. 

The external user web portal will be used for electronic submission of a PVP application 

by the public. New users would need to be e-authenticated through the USDA system 

prior to submission of the first application or inquiry about existing applications. Once 

an account is created it is saved and can be used for subsequent access with a 

password. 

The PVPO provided screenshots of the new ePVP system. The Board had questions on 

e-authentication—the PVPO responded that all users even non-applicants need to be eauthenticated to use this system. The role of a user (applicant, agent, payer, nonapplicant) would be approved by the PVPO. A non-applicant would only have access to 

certain public information. The Board also asked if ePVP would replace the current 

system for finding information about the status and the content of PVP applications and 

certificates; and the PVPO responded that this system would be replaced sometime in 

the future. 

Currently public searches are done using the ARS Germplasm Resources Information 

Network (GRIN). The Board suggested that the PVPO consider talking to the GRIN 

administrators about other PVP certificate information as they upgrade GRIN. The 

PVPO had some discussion with GRIN staff about providing exhibit C: descriptive 

information for all expired and issued PVP certificates. 

The ePVP system will integrate into the ‘pay.gov’ system for processing credit cards 

and e-checks. The ePVP system will also allow bulk application filing when more than 

one application is filed by the same owner for multiple varieties. The system may also 

allow infrequent applicants to copy information from previous applications for new 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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filings. The Board suggested that the ePVP system be as technologically advanced as 

possible since it will jumpstart the PVPO’s international leadership. The PVPO would 

like feedback from the Board when the first ePVP version is released. 

The Board asked if a breeder could fill in part of an application while an administrator 

signs the application, and the payment comes from another person. The PVPO 

responded that these will be designated roles within ePVP to allow multiple people to 

work with an application—each having different access levels. 

PVP Forms—Transgenic Seed & Other Intellectual Property Issues 

When a PVP expires the seeds of the variety are made publicly available by the 

NCGRP. NCGRP would like to disclose to its seed recipients any information about the 

genetically engineered organism (GEO) status and issues of other intellectual property 

(IP) protection (utility patents, foreign PVP rights, etc.). Currently the PVPO find out 

information about the GEO (transgenic) and other IP status by asking applicants to 

respond to two questions on the ST-470 and seed deposit forms. A response to the 

GEO question is optional. 

The April 2012 Board made recommendations that the wording to the GEO and IP 

questions be changed. The PVPO did not change either of these questions since both 

forms were undergoing Office of Management and Budget (OMB) approval. 

NCGRP has resolved the issue of the IP question by enclosing the following disclaimer 

with all seeds that are distributed: 

Intellectual Property Considerations 

This order contains accessions that were originally deposited as a Plant 

Variety Protection Certificate (PVPC) voucher specimen. These 

accessions may be protected by intellectual property rights other than the 

expired PVPC. NPGS suggests that requestors may consult with the 

variety owner named on the issued PVPC. 

(NPGS = National Plant Germplasm System) 

NCGRP still needs assistance to obtain information about the GEO status and the 

transgene characteristics from PVP applicants. 

Currently, the Office obtains transgenic information from block 18 of the ST470 (PVP 

Application form) with the optional question “DOES THE VARIETY CONTAIN ANY 

TRANSGENES? Y/N, IF SO, PLEASE GIVE THE ASSIGNED USDA‐APHIS 

REFERENCE NUMBER FOR THE APPROVED PETITION TO DEREGULATE THE 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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GENETICALLY MODIFIED PLANT FOR COMMERCIALIZATION” and in block 4 of the 

ST472 (Seed Deposit form) with the optional question “Genetically Engineered 

Organism? Y/N”. 

The new proposed forms would have the word “optional” removed from the transgene or 

Genetically Engineered Organism blocks, additionally form ST472 may ask several 

more questions about the characteristics of the transgenes. 

The Board asked: how are GEOs / transgenes being defined? The PVPO responded 

that it would need help defining those terms. NCGRP is most concerned with regulated 

transgenes that might be best defined by the USDA Animal and Plant Health Inspection 

Service Biotechnology Regulatory Services (APHIS-BRS). The Board commented that 

the definition of transgenes may be a liability for NCGRP. The Board recommended that 

a subcommittee be formed with the right expertise to address the terminology of how 

best to ask these questions. The Board also commented that level of transgenes and 

adventitious presence may need to be addressed. 

The Board thought that better understanding of whom NCGRP is trying to protect (i.e. 1) 

the recipients of expired PVP seed, 2) NCGRP for distributing the seed, 3) the U.S. 

export market, 4) the PVP owner ) would help formulate these questions. The Board 

asked if the PVP variety owner could be obligated to release the material to the public 

rather than NCGRP, and the OGC responded that this can only be done by changing 

the law. The Board commented that the subcommittee should focus on the 

requirements needed by NCGRP. The Board commented that the ramifications need to 

be considered if an applicant does not disclose GEO information that they know or 

should know. The Board suggested that ASTA could help set the options or conditions 

for these questions. Three members of the Board volunteered for the GEO question 

subcommittee. 

Findings of the Subcommittee on Molecular Markers for PVP 

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

subcommittee is composed of eight experts on molecular marker technology. 

 The subcommittee has 4 goals: 

1. Help the PVPO and PVP applicants develop a consistent means to use 

molecular markers. 

2. Review the current PVPO, UPOV, and ASTA policies on the use of molecular 

markers 

3. Consider assumptions regarding varieties of common knowledge and the need to 

distinguish a new PVP variety from all varieties of common knowledge. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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4. How can the PVPO incorporate molecular marker data into its crop databases? 

The first meeting focused on what UPOV and ASTA have already developed regarding 

policy or position papers. Three recommendations/comments resulted from the first 

meeting including: 

 Ideas on how the PVPO could implement one or more of the 3 positive assessed 

UPOV marker concepts in a cost controlled manner. 

 Gathering additional information on public markers that may be in use for maize and 

soybean. 

 Looking to the seed industry to encourage PVP applicants to submit marker data 

with new applications as well as making existing marker data available to the Office 

for PVPed varieties. 

During the second meeting the subcommittee had these recommendations/comments: 

 The Office should provide the morphological data from its maize PVP database for 

the 92 expired PVP varieties that are assessed in the Nelson et al. paper (Molecular 

Characterization of Maize Inbreds with Expired U.S. Plant Variety Protection. Crop 

Sci. 48:1673–1685 (2008)). 

– PVPO data would be provided to the subcommittee. 

– Subcommittee members will compare the PVPO’s morphological data with the 

marker data in the article and report their finding to the subcommittee. 

– If this proof of concept analysis proves useful then the subcommittee might 

suggest that a project be coordinated to profile more maize lines. 

 The subcommittee will determine if any similar marker studies exist for lettuce, so 

that a similar markers-morphology comparison might be run. 

 The subcommittee will also assess what marker data exists for pea PVP 

characteristics— when this data is gathered a determination of a proof of concept 

study will be reviewed. 

 Project management for the initial proof of concept studies may be necessary and 

would require project coordination. 

The subcommittee will try to do a proof-of-concept to determine if molecular data may 

be linked to morphological data for the 92 expired maize inbreds. The PVPO said it will 

release all the exhibit C data from the corn database and statements of distinctness for 

these 92 varieties. The subcommittee is recommending using existing published 

papers and existing markers to explore correlations to expired PVP maize as a proof-ofconcept. 

The Board asked if the subcommittee was looking at a means for using markers as the 

sole basis for distinctness, and the chair responded no. The subcommittee was hoping 

to determine if there was a super distinct threshold for markers, and secondly if there 

are criteria for markers to be used as a distinctness tie-breaker. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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An observer mentioned that ASTA’s Variety Identification subcommittee identified a set 

of 3,072 single nucleotide polymorphism (SNP) markers in corn to help identify 

essentially derived varieties. Another observer mentioned that the physical analysis to 

find correlation between SNP markers and PVP traits may be very difficult and that the 

assistance of technical statisticians would be necessary. An Observer also commented 

that the Board’s marker subcommittee and the ASTA subcommittee should have a joint 

meeting. The Board agreed with the recommendation on having these two 

subcommittees convene a joint meeting. 

PVP Regulations—Proposed Changes, Deletions, Additions 

The PVPO is proposing the removal unneeded regulations and changing/adding 

regulations to the Regulations and Rules of Practice. One of the first regulations that 

needs to be added is the postmark rule to section 97.11. This is in response to a 

Judicial Officer ruling that the PVPO accept the postmark as the date for responses/fee 

payments (except for the original PVP application) instead of the ‘arrived-in-office date.’ 

The Board asked if other delivery service (FedEx, UPS etc.) receipts were acceptable 

instead of a US postmark. OGC and a Board member responded that the U.S. postmark 

is the only acceptable form. 

The PVPO also stressed the need for applicant to have access to the PVP system 

during inadvertent government closures such as the shutdown. It was clarified that 

applicants can always access the PVP using http://www.ams.usda.gov/PVPO.

The PVPO will change section 97.5c to reflect the new DC address with any 

subsequent address changes posted in the federal register. The PVPO plans to add a 

change of owner/representative or change of owner/representative address fee ($41) to 

section 97.175. Recordations (security interest, license, grant or conveyance; merger; 

revocation of assignment, security interest, license, grant, or conveyance) will remain at 

the $41 fee. The PVPO will review the per-month extension and late fee, as well as the 

paper application processing surcharge to section 97.175, but these fees will be tabled 

until a later Board meeting. One Board member questioned the need for a change of 

address or owner/representative fee, and another Board member responded that this 

fee is not out of line with other IP systems such as the PTO. The PVPO responded that 

this fee would be reduced or eliminated under the ePVP system. 

The PVPO proposed amending section 97.5(i) to accept copies of foreign PVP 

documentation of PVP rights granted using “copies of other country’s grant can be used 

as evidence to support claims of uniformity and stability, these may be provided in the 

official language of the country of origin. An accurate English translation shall be 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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included”. Other changes proposed include changing “shall” to “should” in section 97.9 

and changing section 97.12 “in the order” to “by the order”. The PVPO proposed 

changing section 97.19 regarding the Official Journal to “Information relating to pending 

applications shall be published periodically, as determined by the Commissioner to be 

necessary in the public interest”. 

Other regulations that the PVPO recommended be changed include sections: 

97.23(d) - be deleted 

97.102, 97.152, 97.156, 97.201(a), 97.400 – add the phrase “and payment of the 

appropriate fee” at the end of these sections 

97.151 – change to allow “attorneys, agents, or legal office representatives” 

97.153 – delete – with the additions to 97.151 

97.155 – change to allow for electronic signatures or scanned images/faxes of 

signatures 

The Board commented and OGC agreed that section 97.151 “legal office 

representatives” language should not be included since anyone who works in an 

attorney’s office operates under the control of that attorney. The Board also commented 

that section 97.153 shouldn’t be deleted. The Board stated that in section 97.155 - 

electronic signatures can be designated by “S” “/” “typed name”. The Board 

recommended the regulation changes as presented. 

Feedback from the Board, Recommendations & Meeting Summary 

The Board commented that the current meeting was more productive than the April 

2012 meeting. This meeting was considered fluid with a solid member base. The Board 

commented on the global perspective of IP protection and how this impacts the U.S. 

and developing countries. The Board asked if the PVPO will be involved in international 

IP activities with its reduced staff, and the PVPO responded that it’s office is 

coordinating with the U.S. PTO to get information about the U.S. PVP to other countries. 

The Board wanted to know if the PVPO will be participating in UPOV technical 

committees, and the PVPO responded that the most important upcoming technical 

committee meeting will be the UPOV Biochemical and Molecular Techniques and DNA 

Profiling in Particular Working Party (BMT) to be held in South Korea in November 

2014. 

The PVPO commented that UPOV is moving ahead with its electronic application 

system and the U.S. wants to show what it has done. The Board commented that the 

PVPO might consider licensing its ePVP system to other countries—at little or no cost to 

extend the U.S. point of view. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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The Board wanted to know if the PVPO could consider recruiting other non-European or 

non-North American countries. The Board suggested that the PVPO consider new 

applications from other places once they know the benefits of the U.S. PVP system. The 

PVPO could be considered as a Center of Excellence and handle that country PVP 

applications. 

The Board was impressed with the openness of the PVPO and stressed the importance 

of having face-to-face meetings. The Board commented that having a physical meeting 

in conjunction with an industry event is a good idea – if this meeting is held in Chicago 

in December 2014 – the Board wants to be able to participate more in the industry 

event. The PVPO responded that it will coordinate a future physical meeting better if it’s 

held in conjunction with an industry event. The Board wanted to know what other ASTA 

meetings the PVPO attends, and the PVPO responded that it attends the ASTA 

Vegetable and Flower meeting and the ASTA Annual convention. The Board also 

thought the PVPO should consider Washington DC for a Board meeting. 

The PVPO wanted the Board to consider locations for a future meeting. The PVPO is 

planning for one physical meeting each year, and perhaps several teleconferences – 

usually with special emphasis. It may be best to schedule a teleconference in early May. 

The Board also thought the PVPO should consider coordinating with the American 

Society of Agronomy and looking at the Independent Professional Seed Association and 

the California Seed Association as possible venues. 

Board Recommendations 

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

fully functional. 

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. 

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. 

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

each time a tissue culture fee is paid. 

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

ST470 and seed deposit forms. 

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

joint meeting. 
Plant Variety Protection (PVP) Board Meeting Minutes – December 9-10, 2013 

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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.