Plant Variety Protection Act Amendments of 1994, USA
        
        

¡@


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 orn disposition of harvested material of the varieties from which the seed was produced.


`(4) APPLICATION FOR PROTECTION OR ENTERING INTO  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:  [Italic->]

Provided, however [<-Italic] , 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 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:   [Italic->] Provided [<-Italic] , 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 theperson'; 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.