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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1406 Engrossed in Senate (ES)]

103d CONGRESS

  2d Session

                                S. 1406

_______________________________________________________________________

                                 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.
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
103d CONGRESS
  2d Session
                                S. 1406

_______________________________________________________________________

                                 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, 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.--Chapter 9 of title II (7 U.S.C. 2501 et 
        seq.) is amended by redesignating section 94 (7 U.S.C. 2504) 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. PROMPT PAYMENT.

    Chapter 9 of title II (7 U.S.C. 2501 et seq.) (as amended by 
section 8) is further amended by adding at the end the following new 
section:

``SEC. 93. PROMPT PAYMENT.

    ``If a seed grower contracts with the holder of a certificate of 
plant variety protection issued under this Act, or a licensee of the 
holder, to produce lawn, turf, or forage grass seed, alfalfa, or clover 
seed, protected under this Act, payments due the grower under the 
contract shall be completed not later than the earlier of--
            ``(1) 30 days after the contract payment date; or
            ``(2) May 1 of the year following the production of the 
        seed.''.

SEC. 10. 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) 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.
    ``(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 by 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 has been 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. 11. 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. 12. LIMITATION OF DAMAGES; MARKING AND NOTICE.

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

SEC. 13. 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, 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. 14. 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
            (3) 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 ``his 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)'' 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. 15. 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. 16. EFFECTIVE DATE.

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

            Passed the Senate May 25 (legislative day, May 16), 1994.

            Attest:

                                                             Secretary.

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