[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.