II

103D CONGRESS

1ST SESSION S. 1406

To amend the Plant Variety Protection Act to make such Act consistent

with the International Convention for the Protection of New Varieties

of Plants of March 19, 1991, to which the United States is a signatory,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

AUGUST 6 (legislative day, JUNE 30), 1993

Mr. KERREY (for himself and Mr. DASCHLE) introduced the following bill;

which was read twice and referred to the Committee on Agriculture,

Nutrition, and Forestry

A BILL

To amend the Plant Variety Protection Act to make such

Act consistent with the International Convention for the

Protection of New Varieties of Plants of March 19, 1991,

to which the United States is a signatory, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; REFERENCES.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Plant Variety Protection Act Amendments of 1993’’.

6 (b) REFERENCES TO PLANT VARIETY PROTECTION

7 ACT.—Except as otherwise expressly provided, whenever
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1 in this Act an amendment or repeal is expressed in terms

2 of an amendment to, or repeal of, a section or other provi3 sion, the reference shall be considered to be made to a

4 section or other provision of the Plant Variety Protection

5 Act (7 U.S.C. 2321 et seq.).

6 SEC. 2. DEFINITIONS AND RULES OF CONSTRUCTION.

7 Section 41 (7 U.S.C. 2401) is amended to read as

8 follows:

9 ‘‘SEC. 41. DEFINITIONS AND RULES OF CONSTRUCTION.

10 ‘‘(a) DEFINITIONS.—As used in this Act:

11 ‘‘(1) BASIC SEED.—The term ‘basic seed’

12 means the seed planted to produce certified or com13 mercial seed.

14 ‘‘(2) BREEDER.—The term ‘breeder’ means the

15 person who directs the final breeding creating a vari16 ety or who discovers and develops a variety. If the

17 actions are conducted by an agent on behalf of a

18 principal, the principal, rather than the agent, shall

19 be considered the breeder. The term does not include

20 a person who redevelops or rediscovers a variety the

21 existence of which is publicly known or a matter of

22 common knowledge.

23 ‘‘(3) ESSENTIALLY DERIVED VARIETY.—

24 ‘‘(A) IN GENERAL.—The term ‘essentially

25 derived variety’ means a variety that—
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1 ‘‘(i) is predominantly derived from an2 other variety (referred to in this paragraph

3 as the ‘initial variety’) or from a variety

4 that is predominantly derived from the ini5 tial variety, while retaining the expression

6 of the essential characteristics that result

7 from the genotype or combination of

8 genotypes of the initial variety;

9 ‘‘(ii) is clearly distinguishable from

10 the initial variety; and

11 ‘‘(iii) except for differences that result

12 from the act of derivation, conforms to the

13 initial variety in the expression of the es14 sential characteristics that result from the

15 genotype or combination of genotypes of

16 the initial variety.

17 ‘‘(B) METHODS.—An essentially derived

18 variety may be obtained by the selection of a

19 natural or induced mutant or of a somaclonal

20 variant, the selection of a variant individual

21 from plants of the initial variety, backcrossing,

22 transformation by genetic engineering, or other

23 method.

24 ‘‘(4) KIND.—The term ‘kind’ means one or

25 more related species or subspecies singly or collec-
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1 tively known by one common name, such as soybean,

2 flax, or radish.

3 ‘‘(5) SEXUALLY REPRODUCED.—The term ‘sex4 ually reproduced’ includes any production of a vari5 ety by seed.

6 ‘‘(6) UNITED STATES.—The terms ‘United

7 States’ and ‘this country’ mean the United States,

8 territories and possessions of the United States, and

9 the Commonwealth of Puerto Rico.

10 ‘‘(7) VARIETY.—The term ‘variety’ means a

11 plant grouping within a single botanical taxon of the

12 lowest known rank, that, without regard to whether

13 the conditions for plant variety protection are fully

14 met, can be defined by the expression of the charac15 teristics resulting from a given genotype or combina16 tion of genotypes, distinguished from any other

17 plant grouping by the expression of at least one

18 characteristic and considered as a unit with regard

19 to the suitability of the plant grouping for being

20 propagated unchanged. A variety may be rep21 resented by seed, transplants, plants, and other

22 matter.

23 ‘‘(b) RULES OF CONSTRUCTION.—For the purposes

24 of this Act:
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1 ‘‘(1) SALE OR DISPOSITION FOR

2 NONREPRODUCTIVE PURPOSES.—The sale or disposi3 tion, for other than reproductive purposes, of har4 vested material produced as a result of experimen5 tation or testing of a variety to ascertain the charac6 teristics of the variety, or as a by-product of increas7 ing a variety, shall not be considered to be a sale or

8 disposition for purposes of exploitation of the

9 variety.

10 ‘‘(2) SALE OR DISPOSITION FOR REPRODUCTIVE

11 PURPOSES.—The sale or disposition of a variety for

12 reproductive purposes shall not be considered to be

13 a sale or disposition for the purposes of exploitation

14 of the variety if the sale or disposition is done as an

15 integral part of a program of experimentation or

16 testing to ascertain the characteristics of the variety,

17 or to increase the variety on behalf of the breeder

18 or the successor in interest of the breeder.

19 ‘‘(3) SALE OR DISPOSITION OF HYBRID SEED.—

20 The sale or disposition of hybrid seed shall be con21 sidered to be a sale or disposition of harvested mate22 rial of the varieties from which the seed was pro23 duced.

24 ‘‘(4) APPLICATION FOR PROTECTION OR EN25 TERING INTO A REGISTER OF VARIETIES.—The fil-
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1 ing of an application for the protection or for the en2 tering of a variety in an official register of varieties,

3 in any country, shall be considered to render the va4 riety a matter of common knowledge from the date

5 of the application, if the application leads to the

6 granting of protection or to the entering of the vari7 ety in the official register of varieties, as the case

8 may be.

9 ‘‘(5) DISTINCTNESS.—The distinctness of one

10 variety from another may be based on one or more

11 identifiable morphological, physiological, or other

12 characteristics (including any characteristics evi13 denced by processing or product characteristics, such

14 as milling and baking characteristics in the case of

15 wheat) with respect to which a difference in geneal16 ogy may contribute evidence.

17 ‘‘(6) PUBLICLY KNOWN VARIETIES.—

18 ‘‘(A) IN GENERAL.—A variety that is ade19 quately described by a publication reasonably

20 considered to be a part of the public technical

21 knowledge in the United States shall be consid22 ered to be publicly known and a matter of com23 mon knowledge.

24 ‘‘(B) DESCRIPTION.—A description that

25 meets the requirements of subparagraph (A)
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1 shall include a disclosure of the principal char2 acteristics by which a variety is distinguished.

3 ‘‘(C) OTHER MEANS.—A variety may be4 come publicly known and a matter of common

5 knowledge by other means.’’.

6 SEC. 3. RIGHT TO PLANT VARIETY PROTECTION; PLANT

7 VARIETIES PROTECTABLE.

8 Section 42 (7 U.S.C. 2402) is amended to read as

9 follows:

10 ‘‘SEC. 42. RIGHT TO PLANT VARIETY PROTECTION; PLANT

11 VARIETIES PROTECTABLE.

12 ‘‘(a) IN GENERAL.—The breeder of any sexually re13 produced plant variety (other than fungi or bacteria) who

14 has so reproduced the variety, or the successor in interest

15 of the breeder, shall be entitled to plant variety protection

16 for the variety, subject to the conditions and requirements

17 of this Act, if the variety is—

18 ‘‘(1) new, in the sense that, on the date of filing

19 of the application for plant variety protection, propa20 gating or harvested material of the variety has not

21 been sold or otherwise disposed of to other persons,

22 by or with the consent of the breeder, or the succes23 sor in interest of the breeder, for purposes of exploi24 tation of the variety—
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1 ‘‘(A) in the United States, more than 1

2 year prior to the date of filing; or

3 ‘‘(B) in any area outside of the United

4 States—

5 ‘‘(i) more than 4 years prior to the

6 date of filing; or

7 ‘‘(ii) in the case of a tree or vine,

8 more than 6 years prior to the date of

9 filing;

10 ‘‘(2) distinct, in the sense that the variety is

11 clearly distinguishable from any other variety the ex12 istence of which is publicly known or a matter of

13 common knowledge at the time of the filing of the

14 application;

15 ‘‘(3) uniform, in the sense that any variations

16 are describable, predictable, and commercially ac17 ceptable; and

18 ‘‘(4) stable, in the sense that the variety, when

19 sexually reproduced, will remain unchanged with re20 gard to the essential and distinctive characteristics

21 of the variety with a reasonable degree of reliability

22 commensurate with that of varieties of the same

23 category in which the same breeding method is

24 employed.

25 ‘‘(b) MULTIPLE APPLICANTS.—
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1 ‘‘(1) IN GENERAL.—If 2 or more applicants

2 submit applications on the same effective filing date

3 for varieties that cannot be clearly distinguished

4 from one another, but that fulfill all other require5 ments of subsection (a), the applicant who first com6 plies with all requirements of this Act shall be enti7 tled to a certificate of plant variety protection, to the

8 exclusion of any other applicant.

9 ‘‘(2) REQUIREMENTS COMPLETED ON SAME

10 DATE.—

11 ‘‘(A) IN GENERAL.—Except as provided in

12 subparagraph (B), if 2 or more applicants com13 ply with all requirements for protection on the

14 same date, a certificate shall be issued for each

15 variety.

16 ‘‘(B) VARIETIES INDISTINGUISHABLE.—If

17 the varieties that are the subject of the applica18 tions cannot be distinguished in any manner, a

19 single certificate shall be issued jointly to the

20 applicants.’’.

21 SEC. 4. APPLICATIONS.

22 Section 52 (7 U.S.C. 2422) is amended—

23 (1) in paragraph (1), by adding at the end the

24 following new sentence: ‘‘The variety shall be named
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1 in accordance with regulations issued by the

2 Secretary.’’;

3 (2) in the first sentence of paragraph (2), by

4 striking ‘‘novelty’’ and inserting ‘‘distinctiveness,

5 uniformity, and stability’’;

6 (3) by redesignating paragraphs (3) and (4) as

7 paragraphs (4) and (5), respectively; and

8 (4) by inserting after paragraph (2) the follow9 ing new paragraph:

10 ‘‘(3) A statement of the basis of the claim of

11 the applicant that the variety is new.’’.

12 SEC. 5. BENEFIT OF EARLIER FILING DATE.

13 Section 55(a) (7 U.S.C. 2425(a)) is amended—

14 (1) by redesignating the first and second sen15 tences as paragraphs (1) and (2), respectively;

16 (2) in paragraph (1) (as so designated), by in17 serting before the period at the end the following: ‘‘,

18 not including the date on which the application is

19 filed in the foreign country’’; and

20 (3) by adding at the end the following new

21 paragraph:

22 ‘‘(3)(A) An applicant entitled to a right of priority

23 under this subsection shall be allowed to furnish any nec24 essary information, document, or material required for the

25 purpose of the examination of the application during—
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1 ‘‘(i) the 2-year period beginning on the date of

2 the expiration of the period of priority ; or

3 ‘‘(ii) if the first application is rejected or with4 drawn, an appropriate period after the rejection or

5 withdrawal, to be determined by the Secretary.

6 ‘‘(B) An event occurring within the period of priority

7 (such as the filing of another application or use of the

8 variety that is the subject of the first application) shall

9 not constitute a ground for rejecting the application or

10 give rise to any third party right.’’.

11 SEC. 6. CONTENTS AND TERM OF PLANT VARIETY PROTEC12 TION.

13 Section 83 (7 U.S.C. 2483) is amended—

14 (1) in the second sentence of subsection (a), by

15 striking ‘‘by variety name’’;

16 (2) in the first sentence of subsection (b)—

17 (A) by striking ‘‘eighteen’’ and inserting

18 ‘‘20’’; and

19 (B) by inserting before the period at the

20 end the following: ‘‘, except that, in the case of

21 a tree or vine, the term of the plant variety pro22 tection shall expire 25 years from the date of

23 issue of the certificate’’; and

24 (3) in subsection (c), by striking ‘‘repository:

25 Provided, however, That’’ and inserting ‘‘repository,
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1 or requiring the submission of a different name for

2 the variety, except that’’.

3 SEC. 7. PRIORITY CONTEST.

4 (a) PRIORITY CONTEST; EFFECT OF ADVERSE FINAL

5 JUDGMENT OR INACTION.—Sections 92 and 93 (7 U.S.C.

6 2502 and 2503) are repealed.

7 (b) INTERFERING PLANT; VARIETY PROTECTION.—

8 (1) REDESIGNATION.—Chapter 9 of title II (7

9 U.S.C. 2501 et seq.) is amended by redesignating

10 section 94 (7 U.S.C. 2504) as section 92.

11 (2) AMENDMENTS.—Section 92 (as so redesig12 nated) is amended—

13 (A) by striking ‘‘The owner’’ and inserting

14 ‘‘(a) The owner’’; and

15 (B) by striking the second sentence.

16 (c) APPEAL OR CIVIL ACTION IN CONTESTED

17 CASES.—

18 (1) TRANSFER.—Section 73 (7 U.S.C. 2463) is

19 amended by transferring subsection (b) to the end

20 of section 92 (as redesignated by subsection (b)(1)).

21 (2) REPEAL.—Section 73 (as amended by para22 graph (1)) is repealed.

23 (d) CONFORMING AMENDMENT.—Section 71 (7

24 U.S.C. 2461) is amended by striking ‘‘92,’’.
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1 SEC. 8. INFRINGEMENT OF PLANT VARIETY PROTECTION.

2 Section 111 (7 U.S.C. 2541) is amended—

3 (1) in subsection (a)—

4 (A) by striking ‘‘novel’’ the first two places

5 it appears and inserting ‘‘protected’’;

6 (B) in paragraph (1), by striking ‘‘the

7 novel’’ and inserting ‘‘or market the protected’’;

8 (C) by striking ‘‘novel’’ each place it ap9 pears in paragraphs (2) through (7);

10 (D) by striking ‘‘or’’ each place it appears

11 at the end of paragraphs (3) through (6);

12 (E) by redesignating paragraphs (7) and

13 (8) as paragraphs (9) and (10), respectively;

14 and

15 (F) by inserting after paragraph (6) the

16 following new paragraphs:

17 ‘‘(7) condition the variety for the purpose of

18 propagation;

19 ‘‘(8) stock the variety for any of the purposes

20 referred to in paragraphs (1) through (7);’’;

21 (2) by redesignating subsection (b) as sub22 section (f); and

23 (3) by inserting after subsection (a) the follow24 ing new subsections:
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1 ‘‘(b) The owner of a protected variety may authorize

2 the use of the variety under this section subject to condi3 tions and limitations specified by the owner.

4 ‘‘(c) This section shall apply equally to—

5 ‘‘(1) any variety that is essentially derived from

6 a protected variety, unless the protected variety is

7 an essentially derived variety;

8 ‘‘(2) any variety that is not clearly distinguish9 able from a protected variety;

10 ‘‘(3) any variety whose production requires the

11 repeated use of a protected variety; and

12 ‘‘(4) harvested material (including entire plants

13 and parts of plants) obtained through the unauthor14 ized use of propagating material of a protected vari15 ety, unless the owner of the variety has had a rea16 sonable opportunity to exercise the rights provided

17 by this Act with respect to the propagating material.

18 ‘‘(d) It shall not be an infringement of the rights of

19 the owner of a variety to perform any act concerning prop20 agating material of any kind, or harvested material, in21 cluding entire plants and parts of plants, of a protected

22 variety that has been sold or otherwise marketed with the

23 consent of the owner in the United States, unless the act

24 involves further propagation of the variety or involves an

25 export of material of the variety, that enables the propaga-
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1 tion of the variety, into a country that does not protect

2 varieties of the plant genus or species to which the variety

3 belongs, unless the exported material is for final consump4 tion purposes.

5 ‘‘(e) It shall not be an infringement of the rights of

6 the owner of a variety to perform any act done privately

7 and for noncommercial purposes.’’.

8 SEC. 9. RIGHT TO SAVE SEED; CROP EXEMPTION.

9 The first sentence of section 113 (7 U.S.C. 2543) is

10 amended by striking ‘‘section: Provided, That’’ and all

11 that follows through the period and inserting ‘‘section.’’.

12 SEC. 10. LIMITATION OF DAMAGES; MARKING AND NOTICE.

13 Section 127 (7 U.S.C. 2567) is amended by striking

14 ‘‘novel’’ each place it appears.

15 SEC. 11. OBLIGATION TO USE VARIETY NAME.

16 Section 128(a) (7 U.S.C. 2568(a)) is amended by

17 adding at the end the following new paragraph:

18 ‘‘(4) Failure to use the name of a variety for

19 which a certificate of protection has been issued

20 under this Act, even after the expiration of the

21 certificate.’’.

22 SEC. 12. TRANSITIONAL PROVISIONS.

23 (a) IN GENERAL.—Except as provided in subsection

24 (b), any variety for which a certificate of plant variety pro25 tection has been issued prior to the effective date of this
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1 Act, and any variety for which an application is pending

2 on the effective date of this Act, shall continue to be gov3 erned by the Plant Variety Protection Act (7 U.S.C. 2321

4 et seq.), as in effect on the day before the effective date

5 of this Act.

6 (b) APPLICATIONS WITHDRAWN AND REFILED.—If

7 a pending application is withdrawn and refiled after the

8 effective date of this Act, eligibility for protection and the

9 terms of protection shall be governed by the Plant Variety

10 Protection Act, as amended by this Act.

11 SEC. 13. EFFECTIVE DATE.

12 This Act and the amendments made by this Act shall

13 become effective 180 days after the date of enactment of

14 this Act.

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