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:

‘‘§ 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
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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 PUR- POSES.—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
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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:

‘‘§ 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
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‘‘(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 para- graphs (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.
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‘‘(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.—
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(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.
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‘‘(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’’.
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(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’’.
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(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,
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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.