`[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1406 Enrolled Bill (ENR)]

        S.1406

                       One Hundred Third Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

          Begun and held at the City of Washington on Tuesday,
 the twenty-fifth day of January, one thousand nine hundred and ninety-
                                  four


                                 An Act

  
 
  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.

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

SECTION 1. SHORT TITLE; REFERENCES.

    (a) Short Title.--This Act may be cited as the ``Plant Variety 
Protection Act Amendments of 1994''.
    (b) References to Plant Variety Protection Act.--Except as 
otherwise expressly provided, whenever in this Act an amendment or 
repeal is expressed in terms of an amendment to, or repeal of, a 
section or other provision, the reference shall be considered to be 
made to a section or other provision of the Plant Variety Protection 
Act (7 U.S.C. 2321 et seq.).

SEC. 2. DEFINITIONS AND RULES OF CONSTRUCTION.

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

``Sec. 41. Definitions and rules of construction

    ``(a) Definitions.--As used in this Act:
        ``(1) Basic seed.--The term `basic seed' means the seed planted 
    to produce certified or commercial seed.
        ``(2) Breeder.--The term `breeder' means the person who directs 
    the final breeding creating a variety or who discovers and develops 
    a variety. If the actions are conducted by an agent on behalf of a 
    principal, the principal, rather than the agent, shall be 
    considered the breeder. The term does not include a person who 
    redevelops or rediscovers a variety the existence of which is 
    publicly known or a matter of common knowledge.
        ``(3) Essentially derived variety.--
            ``(A) In general.--The term `essentially derived variety' 
        means a variety that--
                ``(i) is predominantly derived from another variety 
            (referred to in this paragraph as the `initial variety') or 
            from a variety that is predominantly derived from the 
            initial variety, while retaining the expression of the 
            essential characteristics that result from the genotype or 
            combination of genotypes of the initial variety;
                ``(ii) is clearly distinguishable from the initial 
            variety; and
                ``(iii) except for differences that result from the act 
            of derivation, conforms to the initial variety in the 
            expression of the essential characteristics that result 
            from the genotype or combination of genotypes of the 
            initial variety.
            ``(B) Methods.--An essentially derived variety may be 
        obtained by the selection of a natural or induced mutant or of 
        a somaclonal variant, the selection of a variant individual 
        from plants of the initial variety, backcrossing, 
        transformation by genetic engineering, or other method.
        ``(4) Kind.--The term `kind' means one or more related species 
    or subspecies singly or collectively known by one common name, such 
    as soybean, flax, or radish.
        ``(5) Seed.--The term `seed', with respect to a tuber 
    propagated variety, means the tuber or the part of the tuber used 
    for propagation.
        ``(6) Sexually reproduced.--The term `sexually reproduced' 
    includes any production of a variety by seed, but does not include 
    the production of a variety by tuber propagation.
        ``(7) Tuber propagated.--The term `tuber propagated' means 
    propagated by a tuber or a part of a tuber.
        ``(8) United states.--The terms `United States' and `this 
    country' mean the United States, the territories and possessions of 
    the United States, and the Commonwealth of Puerto Rico.
        ``(9) Variety.--The term `variety' means a plant grouping 
    within a single botanical taxon of the lowest known rank, that, 
    without regard to whether the conditions for plant variety 
    protection are fully met, can be defined by the expression of the 
    characteristics resulting from a given genotype or combination of 
    genotypes, distinguished from any other plant grouping by the 
    expression of at least one characteristic and considered as a unit 
    with regard to the suitability of the plant grouping for being 
    propagated unchanged. A variety may be represented by seed, 
    transplants, plants, tubers, tissue culture plantlets, and other 
    matter.
    ``(b) Rules of Construction.--For the purposes of this Act:
        ``(1) Sale or disposition for nonreproductive purposes.--The 
    sale or disposition, for other than reproductive purposes, of 
    harvested material produced as a result of experimentation or 
    testing of a variety to ascertain the characteristics of the 
    variety, or as a by-product of increasing a variety, shall not be 
    considered to be a sale or disposition for purposes of exploitation 
    of the variety.
        ``(2) Sale or disposition for reproductive purposes.--The sale 
    or disposition of a variety for reproductive purposes shall not be 
    considered to be a sale or disposition for the purposes of 
    exploitation of the variety if the sale or disposition is done as 
    an integral part of a program of experimentation or testing to 
    ascertain the characteristics of the variety, or to increase the 
    variety on behalf of the breeder or the successor in interest of 
    the breeder.
        ``(3) Sale or disposition of hybrid seed.--The sale or 
    disposition of hybrid seed shall be considered to be a sale or 
    disposition of harvested material of the varieties from which the 
    seed was produced.
        ``(4) Application for protection or entering into a register of 
    varieties.--The filing of an application for the protection or for 
    the entering of a variety in an official register of varieties, in 
    any country, shall be considered to render the variety a matter of 
    common knowledge from the date of the application, if the 
    application leads to the granting of protection or to the entering 
    of the variety in the official register of varieties, as the case 
    may be.
        ``(5) Distinctness.--The distinctness of one variety from 
    another may be based on one or more identifiable morphological, 
    physiological, or other characteristics (including any 
    characteristics evidenced by processing or product characteristics, 
    such as milling and baking characteristics in the case of wheat) 
    with respect to which a difference in genealogy may contribute 
    evidence.
        ``(6) Publicly known varieties.--
            ``(A) In general.--A variety that is adequately described 
        by a publication reasonably considered to be a part of the 
        public technical knowledge in the United States shall be 
        considered to be publicly known and a matter of common 
        knowledge.
            ``(B) Description.--A description that meets the 
        requirements of subparagraph (A) shall include a disclosure of 
        the principal characteristics by which a variety is 
        distinguished.
            ``(C) Other means.--A variety may become publicly known and 
        a matter of common knowledge by other means.''.
SEC. 3. RIGHT TO PLANT VARIETY PROTECTION; PLANT VARIETIES PROTECTABLE.
    Section 42 (7 U.S.C. 2402) is amended to read as follows:
``Sec. 42. Right to plant variety protection; plant varieties 
   protectable
    ``(a) In General.--The breeder of any sexually reproduced or tuber 
propagated plant variety (other than fungi or bacteria) who has so 
reproduced the variety, or the successor in interest of the breeder, 
shall be entitled to plant variety protection for the variety, subject 
to the conditions and requirements of this Act, if the variety is--
        ``(1) new, in the sense that, on the date of filing of the 
    application for plant variety protection, propagating or harvested 
    material of the variety has not been sold or otherwise disposed of 
    to other persons, by or with the consent of the breeder, or the 
    successor in interest of the breeder, for purposes of exploitation 
    of the variety--
            ``(A) in the United States, more than 1 year prior to the 
        date of filing; or
            ``(B) in any area outside of the United States--
                ``(i) more than 4 years prior to the date of filing; or
                ``(ii) in the case of a tree or vine, more than 6 years 
            prior to the date of filing;
        ``(2) distinct, in the sense that the variety is clearly 
    distinguishable from any other variety the existence of which is 
    publicly known or a matter of common knowledge at the time of the 
    filing of the application;
        ``(3) uniform, in the sense that any variations are 
    describable, predictable, and commercially acceptable; and
        ``(4) stable, in the sense that the variety, when reproduced, 
    will remain unchanged with regard to the essential and distinctive 
    characteristics of the variety with a reasonable degree of 
    reliability commensurate with that of varieties of the same 
    category in which the same breeding method is employed.
    ``(b) Multiple Applicants.--
        ``(1) In general.--If 2 or more applicants submit applications 
    on the same effective filing date for varieties that cannot be 
    clearly distinguished from one another, but that fulfill all other 
    requirements of subsection (a), the applicant who first complies 
    with all requirements of this Act shall be entitled to a 
    certificate of plant variety protection, to the exclusion of any 
    other applicant.
        ``(2) Requirements completed on same date.--
            ``(A) In general.--Except as provided in subparagraph (B), 
        if 2 or more applicants comply with all requirements for 
        protection on the same date, a certificate shall be issued for 
        each variety.
            ``(B) Varieties indistinguishable.--If the varieties that 
        are the subject of the applications cannot be distinguished in 
        any manner, a single certificate shall be issued jointly to the 
        applicants.''.

SEC. 4. APPLICATIONS.

    Section 52 (7 U.S.C. 2422) is amended--
        (1) in paragraph (1), by adding at the end the following new 
    sentence: ``The variety shall be named in accordance with 
    regulations issued by the Secretary.'';
        (2) in the first sentence of paragraph (2), by striking 
    ``novelty'' and inserting ``distinctiveness, uniformity, and 
    stability'';
        (3) by redesignating paragraphs (3) and (4) as paragraphs (4) 
    and (5), respectively;
        (4) by inserting after paragraph (2) the following new 
    paragraph:
        ``(3) A statement of the basis of the claim of the applicant 
    that the variety is new.''; and
        (5) in paragraph (4) (as redesignated by paragraph (3)), by 
    inserting ``(including any propagating material)'' after ``basic 
    seed''.

SEC. 5. BENEFIT OF EARLIER FILING DATE.

    Section 55(a) (7 U.S.C. 2425(a)) is amended--
        (1) by redesignating the first and second sentences as 
    paragraphs (1) and (2), respectively;
        (2) in paragraph (1) (as so designated), by inserting before 
    the period at the end the following: ``, not including the date on 
    which the application is filed in the foreign country''; and
        (3) by adding at the end the following new paragraph:
        ``(3)(A) An applicant entitled to a right of priority under 
    this subsection shall be allowed to furnish any necessary 
    information, document, or material required for the purpose of the 
    examination of the application during--
            ``(i) the 2-year period beginning on the date of the 
        expiration of the period of priority; or
            ``(ii) if the first application is rejected or withdrawn, 
        an appropriate period after the rejection or withdrawal, to be 
        determined by the Secretary.
        ``(B) An event occurring within the period of priority (such as 
    the filing of another application or use of the variety that is the 
    subject of the first application) shall not constitute a ground for 
    rejecting the application or give rise to any third party right.''.

SEC. 6. NOTICE OF REFUSAL; RECONSIDERATION.

    The first sentence of section 62(b) (7 U.S.C. 2442(b)) is amended--
        (1) by striking ``six months'' and inserting ``at least 30 
    days, and not more than 180 days''; and
        (2) by striking ``in exceptional circumstances''.

SEC. 7. CONTENTS AND TERM OF PLANT VARIETY PROTECTION.

    Section 83 (7 U.S.C. 2483) is amended--
        (1) in subsection (a)--
            (A) by designating the first through fourth sentences as 
        paragraphs (1) through (4), respectively; and
            (B) by striking paragraphs (2) and (3) (as so designated) 
        and inserting the following new paragraphs:
        ``(2) If the owner so elects, the certificate shall--
            ``(A) specify that seed of the variety shall be sold in the 
        United States only as a class of certified seed; and
            ``(B) if so specified, conform to the number of generations 
        designated by the owner.
        ``(3) An owner may waive a right provided under this 
    subsection, other than a right that is elected by the owner under 
    paragraph (2)(A).'';
        (2) in the first sentence of subsection (b)--
            (A) by striking ``eighteen'' and inserting ``20''; and
            (B) by inserting before the period at the end the 
        following: ``, except that, in the case of a tree or vine, the 
        term of the plant variety protection shall expire 25 years from 
        the date of issue of the certificate''; and
        (3) in subsection (c), by striking ``repository: Provided, 
    however, That'' and inserting ``repository, or requiring the 
    submission of a different name for the variety, except that''.

SEC. 8. PRIORITY CONTEST.

    (a) Priority Contest; Effect of Adverse Final Judgment or 
Inaction.--Sections 92 and 93 (7 U.S.C. 2502 and 2503) are repealed.
    (b) Interfering Plant Variety Protection.--
        (1) Redesignation.--Section 94 of the Act (7 U.S.C. 2504) is 
    redesignated as section 92.
        (2) Amendments.--Section 92 (as so redesignated) is amended--
            (A) by striking ``The owner'' and inserting ``(a) The 
        owner''; and
            (B) by striking the second sentence.
    (c) Appeal or Civil Action in Contested Cases.--
        (1) Transfer.--Section 73 (7 U.S.C. 2463) is amended by 
    transferring subsection (b) to the end of section 92 (as 
    redesignated by subsection (b)(1)).
        (2) Repeal.--Section 73 (as amended by paragraph (1)) is 
    repealed.
    (d) Conforming Amendments.--
        (1) Section 71 (7 U.S.C. 2461) is amended by striking ``92,''.
        (2) Section 102 (7 U.S.C. 2532) is amended by inserting ``or 
    tuber propagable'' after ``sexually reproducible'' each place it 
    appears.

SEC. 9. INFRINGEMENT OF PLANT VARIETY PROTECTION.

    Section 111 (7 U.S.C. 2541) is amended--
        (1) in subsection (a)--
            (A) by striking ``novel'' the first two places it appears 
        and inserting ``protected'';
            (B) in paragraph (1), by striking ``the novel'' and 
        inserting ``or market the protected'';
            (C) by striking ``novel'' each place it appears in 
        paragraphs (2) through (7);
            (D) in paragraph (3), by inserting ``, or propagate by a 
        tuber or a part of a tuber,'' after ``sexually multiply'';
            (E) by striking ``or'' each place it appears at the end of 
        paragraphs (3) through (6);
            (F) by redesignating paragraphs (7) and (8) as paragraphs 
        (9) and (10), respectively; and
            (G) by inserting after paragraph (6) the following new 
        paragraphs:
        ``(7) condition the variety for the purpose of propagation, 
    except to the extent that the conditioning is related to the 
    activities permitted under section 113;
        ``(8) stock the variety for any of the purposes referred to in 
    paragraphs (1) through (7);'';
        (2) by redesignating subsection (b) as subsection (f); and
        (3) by inserting after subsection (a) the following new 
    subsections:
    ``(b)(1) Subject to paragraph (2), the owner of a protected variety 
may authorize the use of the variety under this section subject to 
conditions and limitations specified by the owner.
    ``(2) In the case of a contract between a seed producer and the 
owner of a protected variety of lawn, turf, or forage grass seed, or 
alfalfa or clover seed for the production of seed of the protected 
variety, the producer shall be deemed to be authorized by the owner to 
sell such seed and to use the variety if--
        ``(A) the producer has fulfilled the terms of the contract;
        ``(B) the owner refuses to take delivery of the seed or refuses 
    to pay any amounts due under the contract within 30 days of the 
    payment date specified in the contract; and
        ``(C) after the expiration of the period specified in 
    subparagraph (B), the producer notifies the owner of the producer's 
    intent to sell the seed and unless the owner fails to pay the 
    amounts due under the contract and take delivery of the seed within 
    30 days of such notification. For the purposes of this paragraph, 
    the term `owner' shall include any licensee of the owner.
    ``(3) Paragraph (2) shall apply to contracts entered into with 
respect to plant varieties protected under this Act (7 U.S.C. 2321 et 
seq.) as in effect on the day before the effective date of this 
provision as well as plant varieties protected under this Act as 
amended by the Plant Variety Protection Act Amendments of 1994.
    ``(4) Nothing in this subsection shall affect any other rights or 
remedies of producers or owners that may exist under other Federal or 
State laws.
    ``(c) This section shall apply equally to--
        ``(1) any variety that is essentially derived from a protected 
    variety, unless the protected variety is an essentially derived 
    variety;
        ``(2) any variety that is not clearly distinguishable from a 
    protected variety;
        ``(3) any variety whose production requires the repeated use of 
    a protected variety; and
        ``(4) harvested material (including entire plants and parts of 
    plants) obtained through the unauthorized use of propagating 
    material of a protected variety, unless the owner of the variety 
    has had a reasonable opportunity to exercise the rights provided 
    under this Act with respect to the propagating material.
    ``(d) It shall not be an infringement of the rights of the owner of 
a variety to perform any act concerning propagating material of any 
kind, or harvested material, including entire plants and parts of 
plants, of a protected variety that is sold or otherwise marketed with 
the consent of the owner in the United States, unless the act involves 
further propagation of the variety or involves an export of material of 
the variety, that enables the propagation of the variety, into a 
country that does not protect varieties of the plant genus or species 
to which the variety belongs, unless the exported material is for final 
consumption purposes.
    ``(e) It shall not be an infringement of the rights of the owner of 
a variety to perform any act done privately and for noncommercial 
purposes.''.

SEC. 10. RIGHT TO SAVE SEED; CROP EXEMPTION.

    The first sentence of section 113 (7 U.S.C. 2543) is amended by 
striking ``section: Provided, That'' and all that follows through the 
period and inserting ``section.''.

SEC. 11. LIMITATION OF DAMAGES; MARKING AND NOTICE.

    Section 127 (7 U.S.C. 2567) is amended by striking ``novel'' each 
place it appears.

SEC. 12. OBLIGATION TO USE VARIETY NAME.

    Section 128(a) (7 U.S.C. 2568(a)) is amended--
        (1) by inserting ``or tubers or parts of tubers'' after ``plant 
    material''; and
        (2) by adding at the end the following new paragraph:
        ``(4) Failure to use the name of a variety for which a 
    certificate of protection has been issued under this Act, even 
    after the expiration of the certificate, except that lawn, turf, or 
    forage grass seed, or alfalfa or clover seed may be sold without a 
    variety name unless use of the name of a variety for which a 
    certificate of protection has been issued under this Act is 
    required under State law.''.

SEC. 13. ELIMINATION OF GENDER-BASED REFERENCES.

    (a) The last sentence of section 7(a) (7 U.S.C. 2327(a)) is amended 
by striking ``his designee shall act as chairman'' and inserting ``the 
designee of the Secretary shall act as chairperson''.
    (b) Section 10(a) (7 U.S.C. 2330(a)) is amended by striking ``he'' 
and inserting ``the Secretary''.
    (c) Section 23 (7 U.S.C. 2353) is amended--
        (1) in the second sentence, by striking ``he'' and inserting 
    ``the officer''; and
        (2) in the third sentence, by striking ``he'' and inserting 
    ``the person''.
    (d) Section 24 (7 U.S.C. 2354) is amended--
        (1) in the first sentence of subsection (a), by striking 
    ``him'' and inserting ``the witness''; and
        (2) in the second sentence of subsection (c)--
            (A) by striking ``this fees and traveling expenses'' and 
        inserting ``the fees and traveling expenses of the witness''; 
        and
            (B) by striking ``him'' and inserting ``the witness''.
    (e) The last sentence of section 27 (7 U.S.C. 2357) is amended by 
striking ``he'' each place it appears and inserting ``the person''.
    (f) The first sentence of section 44 (7 U.S.C. 2404) is amended by 
striking ``he'' and inserting ``the Secretary''.
    (g) Section 53 (7 U.S.C. 2423) is amended--
        (1) in subsection (a), by striking ``one (or his successor)'' 
    and inserting ``one person (or the successor of the person)''; and
        (2) in subsection (b), by striking ``he'' and inserting ``the 
    Secretary''.
    (h) Section 54 (7 U.S.C. 2424) is amended by striking ``his 
successor in interest'' and inserting ``the successor in interest of 
the breeder''.
    (i) Section 55 (7 U.S.C. 2425) is amended--
        (1) in subsection (a)(2) (as redesignated by section 5(1)), by 
    striking ``his application'' and inserting ``the application filed 
    in the United States''; and
        (2) in subsection (b), by striking ``his predecessor in title'' 
    and inserting ``the predecessor in title of the person''.
    (j) The first sentence of section 62(b) (7 U.S.C. 2442(b)) is 
amended--
        (1) by striking ``him'' and inserting ``an applicant'';
        (2) by striking ``an applicant shall'' and inserting ``the 
    applicant shall''; and
        (3) by striking ``he'' and inserting ``the Secretary''.
    (k) The second sentence of section 72 (7 U.S.C. 2462) is amended by 
striking ``his variety as specified in his application'' and inserting 
``the variety as specified in the application''.
    (l) Section 82 (7 U.S.C. 2482) is amended by striking ``his 
signature'' and inserting ``the signature of the Secretary''.
    (m) Section 83 (7 U.S.C. 2483) is amended--
        (1) in subsection (a) (as amended by section 7(1)(A))--
            (A) in paragraph (1), by striking ``(or his successor in 
        interest) his heirs and assignees'' and inserting ``(or the 
        successor in interest of the breeder)''; and
            (B) in paragraph (4), by striking ``his discretion'' and 
        inserting ``the discretion of the Secretary''; and
        (2) in subsection (c), by striking ``he'' and inserting ``the 
    last owner''.
    (n) Section 86 (7 U.S.C. 2486) is amended--
        (1) in the first sentence, by striking ``him'' and inserting 
    ``the Secretary''; and
        (2) in the third sentence, by striking ``he'' and inserting 
    ``the person''.
    (o) Section 91(c) (7 U.S.C. 2501(c)) is amended by striking ``he'' 
and inserting ``the Secretary''.
    (p) The fourth sentence of section 92(b) (as transferred by section 
8(c)(1)) is amended by striking ``he'' and inserting ``the Secretary''.
    (q) The first sentence of section 111(f) (as redesignated by 
section 9(2)) is amended by striking ``his official capacity'' and 
inserting ``the official capacity of the officer or employee''.
    (r) Section 112 (7 U.S.C. 2542) is amended by striking ``his 
successor in interest'' and inserting ``the successor in interest of 
the person''.
    (s) Section 113 (7 U.S.C. 2543) is amended--
        (1) in the first sentence--
            (A) by striking ``him'' and inserting ``the person''; and
            (B) by striking ``his farm'' and inserting ``the farm of 
        the person''; and
        (2) in the third sentence, by striking ``his actions'' and 
    inserting ``the actions of the purchaser''.
    (t) Section 121 (7 U.S.C. 2561) is amended by striking ``his''.
    (u) Section 126(b) (7 U.S.C. 2566(b)) is amended by striking 
``his'' and inserting ``the''.
    (v) Section 128(a) (7 U.S.C. 2568(a)) is amended by striking ``he'' 
and inserting ``the Secretary''.
    (w) Section 130(a) (7 U.S.C. 2570(a)) is amended by striking ``his 
official capacity'' and inserting ``the official capacity of the 
officer or employee''.

SEC. 14. TRANSITIONAL PROVISIONS.

    (a) In General.--Except as provided in this section, any variety 
for which a certificate of plant variety protection has been issued 
prior to the effective date of this Act, and any variety for which an 
application is pending on the effective date of this Act, shall 
continue to be governed by the Plant Variety Protection Act (7 U.S.C. 
2321 et seq.), as in effect on the day before the effective date of 
this Act.
    (b) Applications Refiled.--
        (1) In general.--An applicant may refile a pending application 
    on or after the effective date of this Act.
        (2) Effect of refiling.--If a pending application is refiled on 
    or after the effective date of this Act--
            (A) eligibility for protection and the terms of protection 
        shall be governed by the Plant Variety Protection Act, as 
        amended by this Act; and
            (B) for purposes of section 42 of the Plant Variety 
        Protection Act, as amended by section 3 of this Act, the date 
        of filing shall be the date of filing of the original 
        application.
    (c) Labeling.--
        (1) In general.--To obtain the protection provided to an owner 
    of a protected variety under the Plant Variety Protection Act (7 
    U.S.C. 2321 et seq.) (as amended by this Act), a notice given by an 
    owner concerning the variety under section 127 of the Plant Variety 
    Protection Act (7 U.S.C. 2567) shall state that the variety is 
    protected under such Act (as amended by this Act).
        (2) Sanctions.--Any person that makes a false or misleading 
    statement or claim, or uses a false or misleading label, concerning 
    protection described in paragraph (1) shall be subject to the 
    sanctions described in section 128 of the Plant Variety Protection 
    Act (7 U.S.C. 2568).

SEC. 15. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall become effective 
180 days after the date of enactment of this Act.







                               Speaker of the House of Representatives.







                            Vice President of the United States and    
                                               President of the Senate.`