I
103D CONGRESS
1ST SESSION
H. R. 2927
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 HOUSE OF REPRESENTATIVES
AUGUST 6, 1993
Mr. DE LA GARZA (for himself, Mr. ROBERTS, and Mr. BROWN of California)
introduced the following bill; which was referred to the Committee on Ag-
riculture
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.
Be it enacted by the Senate and House of Representa-
tives 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 1993’’.
(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 provi-
sion, 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 com-
mercial seed.
‘‘(2) BREEDER.—The term ‘breeder’ means the
person who directs the final breeding creating a vari-
ety 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 an-
other variety (referred to in this paragraph
as the ‘initial variety’) or from a variety
that is predominantly derived from the ini-
tial 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 es-
sential 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 collec-
tively known by one common name, such as soybean,
flax, or radish.
‘‘(5) SEXUALLY REPRODUCED.—The term ‘sex-
ually reproduced’ includes any production of a vari-
ety by seed.
‘‘(6) 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.
‘‘(7) 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 charac-
teristics resulting from a given genotype or combina-
tion 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 rep-
resented by seed, transplants, plants, and other
matter.
‘‘(b) RULES OF CONSTRUCTION.—For the purposes
of this Act:
‘‘(1) 
SALE
OR
DISPOSITION
FOR
NONREPRODUCTIVE PURPOSES.—The sale or disposi-
tion, for other than reproductive purposes, of har-
vested material produced as a result of experimen-
tation or testing of a variety to ascertain the charac-
teristics of the variety, or as a by-product of increas-
ing a variety, shall not be considered to be a sale or
disposition for purposes of exploitation of the vari-
ety.
‘‘(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 con-
sidered to be a sale or disposition of harvested mate-
rial of the varieties from which the seed was pro-
duced.
‘‘(4) APPLICATION
FOR
PROTECTION
OR
EN-
TERING INTO A REGISTER OF VARIETIES.—The fil-
ing of an application for the protection or for the en-
tering of a variety in an official register of varieties,
in any country, shall be considered to render the va-
riety 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 vari-
ety 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 evi-
denced by processing or product characteristics, such
as milling and baking characteristics in the case of
wheat) with respect to which a difference in geneal-
ogy may contribute evidence.
‘‘(6) PUBLICLY KNOWN VARIETIES.—
‘‘(A) IN GENERAL.—A variety that is ade-
quately described by a publication reasonably
considered to be a part of the public technical
knowledge in the United States shall be consid-
ered to be publicly known and a matter of com-
mon knowledge.
‘‘(B) DESCRIPTION.—A description that
meets the requirements of subparagraph (A)
shall include a disclosure of the principal char-
acteristics by which a variety is distinguished.
‘‘(C) OTHER MEANS.—A variety may be-
come publicly known and a matter of common
knowledge by other means.’’.
SEC. 3. RIGHT TO PLANT VARIETY PROTECTION; PLANT VA-
RIETIES 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 re-
produced 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, propa-
gating 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 succes-
sor in interest of the breeder, for purposes of exploi-
tation 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 fil-
ing;
‘‘(2) distinct, in the sense that the variety is
clearly distinguishable from any other variety the ex-
istence 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 ac-
ceptable; and
‘‘(4) stable, in the sense that the variety, when
sexually reproduced, will remain unchanged with re-
gard to the essential and distinctive characteristics
of the variety with a reasonable degree of reliability
commensurate with that of varieties of the same cat-
egory in which the same breeding method is em-
ployed.
‘‘(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 require-
ments of subsection (a), the applicant who first com-
plies with all requirements of this Act shall be enti-
tled 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 com-
ply 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 applica-
tions 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 Sec-
retary.’’;
(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; and
(4) by inserting after paragraph (2) the follow-
ing new paragraph:
‘‘(3) A statement of the basis of the claim of
the applicant that the variety is new.’’.
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 sen-
tences as paragraphs (1) and (2), respectively;
(2) in paragraph (1) (as so designated), by in-
serting 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 nec-
essary information, document, or material required for the
purpose of the examination of the application during—