II

103D CONGRESS

2D 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, Mr. DASCHLE, Mr. DURENBERGER, Mr. EXON,

Mrs. KASSEBAUM, Mr. PRESSLER, Mr. GRASSLEY, Mr. NICKLES, Mr.

CRAIG, Mr. KEMPTHORNE, and Mr. COCHRAN) introduced the following

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

Nutrition, and Forestry

MAY 25 (legislative day, MAY 16), 1994

Committee discharged

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,
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1 SECTION 1. SHORT TITLE; REFERENCES.

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

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

4 (b) REFERENCES TO PLANT VARIETY PROTECTION

5 ACT.—Except as otherwise expressly provided, whenever

6 in this Act an amendment or repeal is expressed in terms

7 of an amendment to, or repeal of, a section or other provi8 sion, the reference shall be considered to be made to a

9 section or other provision of the Plant Variety Protection

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

11 SEC. 2. DEFINITIONS AND RULES OF CONSTRUCTION.

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

13 follows:

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

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

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

17 means the seed planted to produce certified or com18 mercial seed.

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

20 person who directs the final breeding creating a vari21 ety or who discovers and develops a variety. If the

22 actions are conducted by an agent on behalf of a

23 principal, the principal, rather than the agent, shall

24 be considered the breeder. The term does not include

25 a person who redevelops or rediscovers a variety the
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1 existence of which is publicly known or a matter of

2 common knowledge.

3 ‘‘(3) ESSENTIALLY DERIVED VARIETY.—

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

5 derived variety’ means a variety that—

6 ‘‘(i) is predominantly derived from an7 other variety (referred to in this paragraph

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

9 that is predominantly derived from the ini10 tial variety, while retaining the expression

11 of the essential characteristics that result

12 from the genotype or combination of

13 genotypes of the initial variety;

14 ‘‘(ii) is clearly distinguishable from

15 the initial variety; and

16 ‘‘(iii) except for differences that result

17 from the act of derivation, conforms to the

18 initial variety in the expression of the es19 sential characteristics that result from the

20 genotype or combination of genotypes of

21 the initial variety.

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

23 variety may be obtained by the selection of a

24 natural or induced mutant or of a somaclonal

25 variant, the selection of a variant individual
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1 from plants of the initial variety, backcrossing,

2 transformation by genetic engineering, or other

3 method.

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

5 more related species or subspecies singly or collec6 tively known by one common name, such as soybean,

7 flax, or radish.

8 ‘‘(5) SEXUALLY REPRODUCED.—The term ‘sex9 ually reproduced’ includes any production of a vari10 ety by seed.

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

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

13 territories and possessions of the United States, and

14 the Commonwealth of Puerto Rico.

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

16 plant grouping within a single botanical taxon of the

17 lowest known rank, that, without regard to whether

18 the conditions for plant variety protection are fully

19 met, can be defined by the expression of the charac20 teristics resulting from a given genotype or combina21 tion of genotypes, distinguished from any other

22 plant grouping by the expression of at least one

23 characteristic and considered as a unit with regard

24 to the suitability of the plant grouping for being

25 propagated unchanged. A variety may be rep-
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1 resented by seed, transplants, plants, and other

2 matter.

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

4 of this Act:

5 ‘‘(1) SALE OR DISPOSITION FOR

6 NONREPRODUCTIVE PURPOSES.—The sale or disposi7 tion, for other than reproductive purposes, of har8 vested material produced as a result of experimen9 tation or testing of a variety to ascertain the charac10 teristics of the variety, or as a by-product of increas11 ing a variety, shall not be considered to be a sale or

12 disposition for purposes of exploitation of the

13 variety.

14 ‘‘(2) SALE OR DISPOSITION FOR REPRODUCTIVE

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

16 reproductive purposes shall not be considered to be

17 a sale or disposition for the purposes of exploitation

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

19 integral part of a program of experimentation or

20 testing to ascertain the characteristics of the variety,

21 or to increase the variety on behalf of the breeder

22 or the successor in interest of the breeder.

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

24 The sale or disposition of hybrid seed shall be con25 sidered to be a sale or disposition of harvested mate-
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1 rial of the varieties from which the seed was pro2 duced.

3 ‘‘(4) APPLICATION FOR PROTECTION OR EN4 TERING INTO A REGISTER OF VARIETIES.—The fil5 ing of an application for the protection or for the en6 tering of a variety in an official register of varieties,

7 in any country, shall be considered to render the va8 riety a matter of common knowledge from the date

9 of the application, if the application leads to the

10 granting of protection or to the entering of the vari11 ety in the official register of varieties, as the case

12 may be.

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

14 variety from another may be based on one or more

15 identifiable morphological, physiological, or other

16 characteristics (including any characteristics evi17 denced by processing or product characteristics, such

18 as milling and baking characteristics in the case of

19 wheat) with respect to which a difference in geneal20 ogy may contribute evidence.

21 ‘‘(6) PUBLICLY KNOWN VARIETIES.—

22 ‘‘(A) IN GENERAL.—A variety that is ade23 quately described by a publication reasonably

24 considered to be a part of the public technical

25 knowledge in the United States shall be consid-
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1 ered to be publicly known and a matter of com2 mon knowledge.

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

4 meets the requirements of subparagraph (A)

5 shall include a disclosure of the principal char6 acteristics by which a variety is distinguished.

7 ‘‘(C) OTHER MEANS.—A variety may be8 come publicly known and a matter of common

9 knowledge by other means.’’.

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

11 VARIETIES PROTECTABLE.

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

13 follows:

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

15 VARIETIES PROTECTABLE.

16 ‘‘(a) IN GENERAL.—The breeder of any sexually re17 produced plant variety (other than fungi or bacteria) who

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

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

20 for the variety, subject to the conditions and requirements

21 of this Act, if the variety is—

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

23 of the application for plant variety protection, propa24 gating or harvested material of the variety has not

25 been sold or otherwise disposed of to other persons,
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1 by or with the consent of the breeder, or the succes2 sor in interest of the breeder, for purposes of exploi3 tation of the variety—

4 ‘‘(A) in the United States, more than 1

5 year prior to the date of filing; or

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

7 States—

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

9 date of filing; or

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

11 more than 6 years prior to the date of

12 filing;

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

14 clearly distinguishable from any other variety the ex15 istence of which is publicly known or a matter of

16 common knowledge at the time of the filing of the

17 application;

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

19 are describable, predictable, and commercially ac20 ceptable; and

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

22 sexually reproduced, will remain unchanged with re23 gard to the essential and distinctive characteristics

24 of the variety with a reasonable degree of reliability

25 commensurate with that of varieties of the same
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1 category in which the same breeding method is

2 employed.

3 ‘‘(b) MULTIPLE APPLICANTS.—

4 ‘‘(1) IN GENERAL.—If 2 or more applicants

5 submit applications on the same effective filing date

6 for varieties that cannot be clearly distinguished

7 from one another, but that fulfill all other require8 ments of subsection (a), the applicant who first com9 plies with all requirements of this Act shall be enti10 tled to a certificate of plant variety protection, to the

11 exclusion of any other applicant.

12 ‘‘(2) REQUIREMENTS COMPLETED ON SAME

13 DATE.—

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

15 subparagraph (B), if 2 or more applicants com16 ply with all requirements for protection on the

17 same date, a certificate shall be issued for each

18 variety.

19 ‘‘(B) VARIETIES INDISTINGUISHABLE.—If

20 the varieties that are the subject of the applica21 tions cannot be distinguished in any manner, a

22 single certificate shall be issued jointly to the

23 applicants.’’.

24 SEC. 4. APPLICATIONS.

25 Section 52 (7 U.S.C. 2422) is amended—
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1 (1) in paragraph (1), by adding at the end the

2 following new sentence: ‘‘The variety shall be named

3 in accordance with regulations issued by the

4 Secretary.’’;

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

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

7 uniformity, and stability’’;

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

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

10 (4) by inserting after paragraph (2) the follow11 ing new paragraph:

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

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

14 SEC. 5. BENEFIT OF EARLIER FILING DATE.

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

16 (1) by redesignating the first and second sen17 tences as paragraphs (1) and (2), respectively;

18 (2) in paragraph (1) (as so designated), by in19 serting before the period at the end the following: ‘‘,

20 not including the date on which the application is

21 filed in the foreign country’’; and

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

23 paragraph:

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

25 under this subsection shall be allowed to furnish any nec-
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1 essary information, document, or material required for the

2 purpose of the examination of the application during—

3 ‘‘(i) the 2-year period beginning on the date of

4 the expiration of the period of priority ; or

5 ‘‘(ii) if the first application is rejected or with6 drawn, an appropriate period after the rejection or

7 withdrawal, to be determined by the Secretary.

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

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

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

11 not constitute a ground for rejecting the application or

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

13 SEC. 6. CONTENTS AND TERM OF PLANT VARIETY PROTEC14 TION.

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

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

17 striking ‘‘by variety name’’;

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

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

20 ‘‘20’’; and

21 (B) by inserting before the period at the

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

23 a tree or vine, the term of the plant variety pro24 tection shall expire 25 years from the date of

25 issue of the certificate’’; and
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1 (3) in subsection (c), by striking ‘‘repository:

2 Provided, however, That’’ and inserting ‘‘repository,

3 or requiring the submission of a different name for

4 the variety, except that’’.

5 SEC. 7. PRIORITY CONTEST.

6 (a) PRIORITY CONTEST; EFFECT OF ADVERSE FINAL

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

8 2502 and 2503) are repealed.

9 (b) INTERFERING PLANT; VARIETY PROTECTION.—

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

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

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

13 (2) AMENDMENTS.—Section 92 (as so redesig14 nated) is amended—

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

16 ‘‘(a) The owner’’; and

17 (B) by striking the second sentence.

18 (c) APPEAL OR CIVIL ACTION IN CONTESTED

19 CASES.—

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

21 amended by transferring subsection (b) to the end

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

23 (2) REPEAL.—Section 73 (as amended by para24 graph (1)) is repealed.
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1 (d) CONFORMING AMENDMENT.—Section 71 (7

2 U.S.C. 2461) is amended by striking ‘‘92,’’.

3 SEC. 8. INFRINGEMENT OF PLANT VARIETY PROTECTION.

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

5 (1) in subsection (a)—

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

7 it appears and inserting ‘‘protected’’;

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

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

10 (C) by striking ‘‘novel’’ each place it ap11 pears in paragraphs (2) through (7);

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

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

14 (E) by redesignating paragraphs (7) and

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

16 and

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

18 following new paragraphs:

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

20 propagation;

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

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

23 (2) by redesignating subsection (b) as sub24 section (f); and
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1 (3) by inserting after subsection (a) the follow2 ing new subsections:

3 ‘‘(b) The owner of a protected variety may authorize

4 the use of the variety under this section subject to condi5 tions and limitations specified by the owner.

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

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

8 a protected variety, unless the protected variety is

9 an essentially derived variety;

10 ‘‘(2) any variety that is not clearly distinguish11 able from a protected variety;

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

13 repeated use of a protected variety; and

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

15 and parts of plants) obtained through the unauthor16 ized use of propagating material of a protected vari17 ety, unless the owner of the variety has had a rea18 sonable opportunity to exercise the rights provided

19 by this Act with respect to the propagating material.

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

21 the owner of a variety to perform any act concerning prop22 agating material of any kind, or harvested material, in23 cluding entire plants and parts of plants, of a protected

24 variety that has been sold or otherwise marketed with the

25 consent of the owner in the United States, unless the act
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1 involves further propagation of the variety or involves an

2 export of material of the variety, that enables the propaga3 tion of the variety, into a country that does not protect

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

5 belongs, unless the exported material is for final consump6 tion purposes.

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

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

9 and for noncommercial purposes.’’.

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

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

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

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

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

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

16 ‘‘novel’’ each place it appears.

17 SEC. 11. OBLIGATION TO USE VARIETY NAME.

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

19 adding at the end the following new paragraph:

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

21 which a certificate of protection has been issued

22 under this Act, even after the expiration of the

23 certificate.’’.
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1 SEC. 12. TRANSITIONAL PROVISIONS.

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

3 (b), any variety for which a certificate of plant variety pro4 tection has been issued prior to the effective date of this

5 Act, and any variety for which an application is pending

6 on the effective date of this Act, shall continue to be gov7 erned by the Plant Variety Protection Act (7 U.S.C. 2321

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

9 of this Act.

10 (b) APPLICATIONS WITHDRAWN AND REFILED.—If

11 a pending application is withdrawn and refiled after the

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

13 terms of protection shall be governed by the Plant Variety

14 Protection Act, as amended by this Act.

15 SEC. 13. EFFECTIVE DATE.

16 This Act and the amendments made by this Act shall

17 become effective 180 days after the date of enactment of

18 this Act.

Æ