To encourage the development of novel varieties of
sexually reproduced plants and to make them available to the public,
providing protection available to those who breed, develop, or discover
them, and thereby promoting progress in agriculture in the public
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled.
|Title I - Plant Variety
|Title II -
Protectability of Plant Varieties and Certificates of Protection
|Title III - Plant
Variety Protection and Rights
PLANT VARIETY PROTECTION ACT
TITLE I -
Variety Protection Office
||Organization and Publications
||Legal Provisions as to the Plant Variety
||Plant Variety Protection Fees
CHAPTER 1: ORGANIZATION AND
Section 1. Establishment.
There is hereby established in the Department of Agriculture an
office to be known as the Plant Variety Protection Office, which shall
have the functions set forth in this Act. (7 U.S.C. 2321.)
Sec. 2. Seal.
The Plant Variety Protection Office shall have a seal with which
documents and certificates evidencing plant variety protection shall be
authenticated. (7 U.S.C. 2322.)
Sec. 3. Organization.
The organization of the Plant Variety Protection Office shall, except
as provided herein, be determined by the Secretary of Agriculture
(hereinafter called the Secretary). The office shall devote itself
substantially exclusively to the administration of this Act. (7 U.S.C.
Sec. 4. Restrictions on Employees as to Interest in Plant Variety
Employees of the Plant Variety Protection Office shall be ineligible
during the periods of their employment, to apply for plant variety
protection and to acquire directly or indirectly, except by inheritance
or bequest, any right or interest in any matters before that office.
This section shall not apply to members of the Plant Variety Protection
Board who are not otherwise employees of the Plant Variety Protection
Office. (7 U.S.C. 2324.)
Sec. 5. Repealed. (7 U.S.C. 2325.)
Sec. 6. Regulations.
The Secretary may establish regulations, not inconsistent with law,
for the conduct of proceedings in the Plant Variety Protection Office
after consultations with the Plant Variety Protection Board. (7 U.S.C.
Sec. 7. Plant Variety Protection Board.
(a) Appointment-The Secretary shall appoint a Plant Variety
Protection Board. The Board shall consist of individuals who are experts
in various areas of varietal development covered by this Act. Membership
of the Board shall include farmer representation and shall be drawn
approximately equally from the private or seed industry sector and from
the sector of government or the public. The Secretary or the designee of
the Secretary shall act as chairperson of the Board without voting
rights except in the case of ties.
(b) Functions of Board-The functions of the Plant Variety Protection
Board shall include:
(1) Advising the Secretary concerning the adoption of Rules and
Regulations to facilitate the proper administration of this Act;
(2) Making advisory decisions on all appeals from the examiner. The
Board shall determine whether to act as a full Board or by panels it
selects; and whether to review advisory decisions made by a panel. For
service on such appeals, the Board may select, as temporary members,
experts in the area to which the particular appeal relates; and
(3) Advising the Secretary on all questions under section 44.
(c) Compensation of Board-The members of the Plant Variety Protection
Board shall serve without compensation except for standard government
reimbursable expenses. (7 U.S.C. 2327.)
Sec. 8. Library.
The Secretary shall maintain a library of scientific and other works
and periodicals, both foreign and domestic, in the Plant Variety
Protection Office to aid the examiners in the discharge of their duties.
(7 U.S.C. 2328.)
Sec. 9. Register of Protected Plant Varieties.
The Secretary shall maintain a register of descriptions of United
States protected plant varieties. (7 U.S.C. 2329.)
Sec. 10. Publications.
(a) The Secretary may publish, or cause to be published, in such
format as the Secretary shall determine to be suitable, the following:
(1) The descriptions of plant varieties protected including
drawings and photographs.
(2) The Official Journal of the Plant Variety Protection Office
including annual indices.
(3) Pamphlet copies of the plant variety protection laws and rules
of practice and circulars or other publications relating to the
business of the Office.
(b) The Secretary may (1) establish public facilities for the
searching of plant variety protection records and materials, and (2)
from time to time, as through an information service, disseminate to the
public those portions of the technological and other public information
available to or within the Plant Variety Protection Office to encourage
innovation and promote the progress of plant breeding.
(c) The Secretary may exchange any of the publications specified for
publications desirable for the use of the Plant Variety Protection
Office. The Secretary may exchange copies of descriptions, drawings, and
photographs of United States protected plant varieties for copies of
descriptions, drawings, and photographs of applications and protected
plant varieties of foreign countries.
(7 U.S.C. 2330.)
Sec. 11. Copies for Public Libraries.
The Secretary may supply printed copies of descriptions, drawings,
and photographs of protected plant varieties to public libraries in the
United States which shall maintain such copies for the use of the
public. (7 U.S.C. 2331.)
CHAPTER 2: LEGAL
PROVISIONS AS TO THE PLANT VARIETY PROTECTION OFFICE
Sec. 21. Day for Taking Action Falling on Saturday, Sunday, or
When the day, or the last day, for taking any action or paying any
fee in the United States Plant Variety Protection Office falls on
Saturday, Sunday, a holiday within the District of Columbia, or on any
other day the Plant Variety Protection Office is closed for the receipt
of papers, the action may be taken or the fee paid, on the next
succeeding business day. (7 U.S.C. 2351.)
Sec. 22. Form of Papers Filed.
The Secretary may by regulations prescribe the form of papers to be
filed in the Plant Variety Protection Office. (7 U.S.C. 2352.)
Sec. 23. Testimony in Plant Variety Protection Office Cases.
The Secretary may establish regulations for taking affidavits,
depositions, and other evidence required in cases before the Plant
Variety Protection Office. Any officer authorized by law to take
depositions to be used in the courts of the United States, or of the
State where the officer resides, may take such affidavits and
depositions, and swear the witnesses. If any person acts as a hearing
officer by authority of the Secretary, the person shall have like power.
(7 U.S.C. 2353.)
Sec. 24. Subpoenas, Witnesses.
(a) The clerk of any United States court for the district wherein
testimony is to be taken in accordance with regulations established by
the Secretary for use in any contested case in the Plant Variety
Protection Office shall, upon the application of any party thereof,
issue a subpoena for any witness residing or being within such district
or within one hundred miles of the stated place in such district,
commanding the witness to appear and testify before an officer in such
district authorized to take depositions and affidavits, at the time and
place stated in the subpoena. The provisions of the Federal Rules of
Civil Procedure relating to the attendance of witnesses and the
production of documents and things shall apply to contested cases in the
Plant Variety Protection Office insofar as consistent with such
(b) Every witness subpoenaed or testifying shall be allowed the fees
and traveling expenses allowed to witnesses attending the United States
(c) A judge of a court whose clerk issued a subpoena may enforce
obedience to the process or punish disobedience as in other like cases,
on proof that a witness, served with such subpoena, neglected or refused
to appear or to testify. No witness shall be deemed guilty of contempt
for disobeying such subpoena unless the fees and traveling expenses of
the witness in going to, and returning from, one day's attendance at the
place of examination, are paid or tendered the witness at the time of
the service of the subpoena; nor for refusing to disclose any secret
matter except upon appropriate order of the court which issued the
subpoena or of the Secretary. (7 U.S.C. 2354.)
Sec. 25. Effect of Defective Execution.
Any document to be filed in the Plant Variety Protection Office and
which is required by any law or regulation to be executed in a specified
manner may be provisionally accepted by the Secretary despite a
defective execution, provided a properly executed document is submitted
within such time as may be prescribed. (7 U.S.C. 2355.)
Sec. 26. Regulations for Practice Before the Office.
The Secretary shall prescribe regulations governing the admission to
practice and conduct of persons representing applicants or other parties
before the Plant Variety Protection Office. The Secretary may, after
notice and opportunity for a hearing, suspend or exclude, either
generally or in any particular case, from further practice before the
Office of Plant Variety Protection any person shown to be incompetent or
disreputable or guilty of gross misconduct. (7 U.S.C. 2356.)
Sec. 27. Unauthorized Practice.
Anyone who in the United States engages in direct or indirect
practice before the Office of Plant Variety Protection while suspended
or excluded under section 26, or without being admitted to practice
before the Office, shall be liable in a civil action for the return of
all money received, and for compensation for damage done by such person
and also may be enjoined from such practice. However, there shall be no
liability for damage if such person establishes that the work was done
competently and without negligence. This section does not apply to
anyone who, without a claim of self-sufficiency, works under the
supervision of another who stands admitted and is the responsible party;
nor to anyone who establishes that the person acted only on behalf of
any employer by whom the person was regularly employed. (7 U.S.C. 2357.)
CHAPTER 3: PLANT VARIETY
Sec. 31. Plant Variety Protection Fees.
(a) In General.-The Secretary shall, under such regulations as the
Secretary may prescribe, charge and collect reasonable fees for services
performed under this Act.
(b) Late Payment Penalty.-On failure to pay such fees, the Secretary
shall assess a late payment penalty. Such overdue fees shall accrue
interest as required by section 3717 of title 31, United States Code.
(c) Disposition of Funds.-Such fees, late payment penalties, and
accrued interest collected shall be credited to the account that incurs
the cost and shall remain available without fiscal year limitation to
pay the expenses incurred by the Secretary in carrying out this Act.
Such funds collected (including late payment penalties and any interest
earned) may be invested by the Secretary in insured or fully
collateralized, interest-bearing accounts or, at the discretion of the
Secretary, by the Secretary of the Treasury in United States Government
(d) Actions for Nonpayment.-The Attorney General may bring an action
for the recovery of charges that have not been paid in accordance with
this Act against any person obligated for payment of such charges under
this Act in any United States district court or other United States
court for any territory or possession in any jurisdiction in which the
person is found, resides, or transacts business. The court shall have
jurisdiction to hear and decide the action.
(e) Authorization of Appropriations-There are authorized to be
appropriated such sums as are necessary to carry out this Act. (7 U.S.C.
Sec. 32. Payment of Plant Variety Protection Fees; Return of Excess
All fees shall be paid to the Secretary, and the Secretary may refund
any sum paid by mistake or in excess of the fee required. (7 U.S.C.
TITLE II: PROTECTABILITY OF
PLANT VARIETIES AND CERTIFICATES OF PROTECTION
TITLE III: PLANT
VARIETY PROTECTION AND RIGHTS
Ownership and Assignment
||Infringement of Plant Variety Protection
||Remedies for Infringement of Plant Variety
Protection, and Other Actions
||Intent and Severability
||Temporary Provision and Related Enactments;
Exempted Plants; Miscellaneous
CHAPTER 10: OWNERSHIP AND
Sec. 101. Ownership and Assignment.
(a) Subject to the provisions of this title, plant variety protection
shall have the attributes of personal property.
(b) Applications for certificates of plant variety protection, or any
interest in a variety, shall be assignable by an instrument in writing.
The owner may in like manner license or grant and convey an exclusive
right to use of the variety in the whole or any specified part of the
(c) A certificate of acknowledgment under the hand and official seal
of a person authorized to administer oaths within the United States, or
in a foreign country, of a diplomatic or consular officer of the United
States or an officer authorized to administer oaths whose authority is
proved by a certificate of a diplomatic or consular officer of the
United States, shall be prima facie evidence of the execution of an
assignment, grant, license, or conveyance of plant variety protection or
application for plant variety protection.
(d) An assignment, grant, conveyance or license shall be void as
against any subsequent purchaser or mortgagee for a valuable
consideration, without notice, unless it, or an acknowledgment thereof
by the person giving such encumbrance that there is such encumbrance, is
filed for recording in the Plant Variety Protection Office within one
month from its date or at least one month prior to the date of such
subsequent purchase or mortgage. (7 U.S.C. 2531.)
Sec. 102. Ownership During Testing.
An owner who, with notice that release is for testing only, releases
possession of seed or other sexually reproducible or tuber propagable
plant material for testing retains ownership with respect thereto; and
any diversion from authorized testing, or any unauthorized retention, of
such material by anyone who has knowledge that it is under such notice,
or who is chargeable with notice, is prohibited, and violates the
property rights of the owner. Anyone receiving the material tagged or
labeled with the notice is chargeable with the notice. The owner is
entitled to remedy and redress in a civil action hereunder. No remedy
available by State or local law is hereby excluded. No such notice shall
be used, or if used be effective, when the owner has made identical
sexually reproducible or tuber propagable plant material available to
the public, as by sale thereof. (7 U.S.C. 2532.)
CHAPTER 11: INFRINGEMENT
OF PLANT VARIETY PROTECTION
Sec. 111. Infringement of Plant Variety Protection.
(a) Except as otherwise provided in this title, it shall be an
infringement of the rights of the owner of a protected variety to
perform without authority, any of the following acts in the United
States, or in commerce which can be regulated by Congress or affecting
such commerce, prior to expiration of the right to plant variety
protection but after either the issue of the certificate or the
distribution of a protected plant variety with the notice under section
(1) sell or market the protected variety, or offer it or expose it
for sale, deliver it, ship it, consign it, exchange it, or solicit an
offer to buy it, or any other transfer of title or possession of it;
(2) import the variety into, or export it from, the United States;
(3) sexually multiply, or propagate by a tuber or a part of a
tuber, the variety as a step in marketing (for growing purposes) the
(4) use the variety in producing (as distinguished from developing)
a hybrid or different variety therefrom;
(5) use seed which had been marked "Unauthorized Propagation
Prohibited'' or "Unauthorized Seed Multiplication Prohibited'' or
progeny thereof to propagate the variety;
(6) dispense the variety to another, in a form which can be
propagated, without notice as to being a protected variety under which
it was received;
(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);
(9) perform any of the foregoing acts even in instances in which
the variety is multiplied other than sexually, except in pursuance of
a valid United States plant patent; or
(10) instigate or actively induce performance of any of the
(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
(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
(2) any variety that is not clearly distinguishable from a
(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
(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
(f) As used in this section, the term "perform without
authority" includes performance without authority by any State, any
instrumentality of a State, and any officer or employee of a State or
instrumentality of a State acting in the official capacity of the
officer or employee. Any State, and any such instrumentality, officer,
or employee, shall be subject to the provisions of this Act in the same
manner and to the same extent as any nongovernmental entity. (7 U.S.C.
Sec. 112. Grandfather Clause.
Nothing in this Act shall abridge the right of any person, or the
successor in interest of the person, to reproduce or sell a variety
developed and produced by such person more than one year prior to the
effective filing date of an adverse application for a certificate of
plant variety protection. (7 U.S.C. 2542.)
Sec. 113. Right To Save Seed; Crop Exemption.
Except to the extent that such action may constitute an infringement
under subsections (3) and (4) of section 111, it shall not infringe any
right hereunder for a person to save seed produced by the person from
seed obtained, or descended from seed obtained, by authority of the
owner of the variety for seeding purposes and use such saved seed in the
production of a crop for use on the farm of the person, or for sale as
provided in this section. A bona fide sale for other than reproductive
purposes, made in channels usual for such other purposes, of seed
produced on a farm either from seed obtained by authority of the owner
for seeding purposes or from seed produced by descent on such farm from
seed obtained by authority of the owner for seeding purposes shall not
constitute an infringement. A purchaser who diverts seed from such
channels to seeding purposes shall be deemed to have notice under
section 127 that the actions of the purchaser constitute an
infringement. (7 U.S.C. 2543.)
Sec. 114. Research Exemption.
The use and reproduction of a protected variety for plant breeding or
other bona fide research shall not constitute an infringement of the
protection provided under this Act. (7 U.S.C. 2544.)
Sec. 115. Intermediary Exemption.
Transportation or delivery by a carrier in the ordinary course of its
business as a carrier, or advertising by a person in the advertising
business in the ordinary course of that business, shall not constitute
an infringement of the protection provided under this Act. (7 U.S.C.
CHAPTER 12: REMEDIES FOR
INFRINGEMENT OF PLANT VARIETY PROTECTION,
AND OTHER ACTIONS
Sec. 121. Remedy for Infringement of Plant Variety Protection.
An owner shall have remedy by civil action for infringement of plant
variety protection under section 111. If a variety is sold under the
name of a variety shown in a certificate, there is a prima facie
presumption that it is the same variety. (7 U.S.C. 2561.)
Sec. 122. Presumption of Validity; Defenses.
(a) Certificates of plant variety protection shall be presumed valid.
The burden of establishing invalidity of a plant variety protection
shall rest on the party asserting invalidity.
(b) The following shall be defenses in any action charging
infringement and shall be pleaded: (1) noninfringement, absence of
liability for infringement, or unenforceability; (2) invalidity of the
plant variety protection in suit on any ground specified in section 42
of this title as a condition for protectability; (3) invalidity of the
plant variety protection in suit for failure to comply with any
requirement of section 52; (4) that the asserted infringement was
performed under an existing certificate adverse to that asserted and
prior to notice of the infringement; and (5) any other fact or act made
a defense by this Act. (7 U.S.C. 2562.)
Sec. 123. Injunction.
The several courts having jurisdiction of cases under this title may
grant injunctions in accordance with the principles of equity to prevent
the violation of any right hereunder on such terms as the court deems
reasonable. (7 U.S.C. 2563.)
Sec. 124. Damages.
(a) Upon finding an infringement the court shall award damages
adequate to compensate for the infringement but in no event less than a
reasonable royalty for the use made of the variety by the infringer,
together with interest and costs as fixed by the court.
(b) When the damages are not determined by the jury, the court shall
determine them. In either event the court may increase the damages up to
three times the amount determined.
(c) The court may receive expert testimony as an aid to the
determination of damages or of what royalty would be reasonable under
(d) As to infringement prior to, or resulting from a planting prior
to, issuance of a certificate for the infringed variety, a court finding
the infringer to have established innocent intentions, shall have
discretion as to awarding damages. (7 U.S.C. 2564.)
Sec. 125. Attorney Fees.
The court in exceptional cases may award reasonable attorney fees to
the prevailing party. (7 U.S.C. 2565.)
Sec. 126. Time Limitation on Damages.
(a) No recovery shall be had for that part of any infringement
committed more than six years (or known to the owner more than one year)
prior to the filing of the complaint or counterclaim for infringement in
(b) In the case of claims against the United States Government for
unauthorized use of a protected variety, the period between the date of
receipt of written claim for compensation by the department or agency of
the Government having authority to settle such claim, and the date of
mailing by the Government of a notice to the claimant that the claim has
been denied shall not be counted as part of the period referred to in
the preceding paragraph. (7 U.S.C. 2566.)
Sec. 127. Limitation of Damages; Marking and Notice.
Owners may give notice to the public by physically associating with
or affixing to the container of seed of a variety or by fixing to the
variety, a label containing either the words "Unauthorized
Propagation Prohibited'' or the words "Unauthorized Seed
Multiplication Prohibited'' and after the certificate issues, such
additional words as "U.S. Protected Variety''. In the event the
variety is distributed by authorization of the owner and is received by
the infringer without such marking, no damages shall be recovered
against such infringer by the owner in any action for infringement,
unless the infringer has actual notice or knowledge that propagation is
prohibited or that the variety is a protected variety, in which event
damages may be recovered only for infringement occurring after such
notice. As to both damages and injunction, a court shall have discretion
to be lenient as to disposal of materials acquired in good faith by acts
prior to such notice. (7 U.S.C. 2567.)
Sec. 128. False Marking; Cease and Desist Orders.
(a) Each of the following acts, if performed in connection with the
sale, offering for sale, or advertising of sexually reproducible plant
material or tuber or parts of tubers, is prohibited, and the Secretary
may, if the Secretary determines after an opportunity for hearing that
the act is being so performed, issue an order to cease and desist, said
order being binding unless appealed under section 71:
(1) Use of the words "U.S. Protected Variety'' or any word or
number importing that the material is a variety protected under
certificate, when it is not.
(2) Use of any wording importing that the material is a variety for
which an application for plant variety protection is pending, when it is
(3) Use of either the phrase "Unauthorized Propagation
Prohibited'' or "Unauthorized Seed Multiplication Prohibited'' or
similar phrase without reasonable basis. Any reasonable basis expires
one year after the first sale of the variety except as justified
thereafter by a pending application or a certificate still in force.
(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.
(b) Anyone convicted of violating a binding cease and desist order,
or of performing any act prohibited in subsection (a) of this section
for the purpose of deceiving the public, shall be fined not more than
$10,000 and not less than $500.
(c) Anyone whose business is damaged or is likely to be damaged by an
act prohibited in subsection (a) of this section, or is subjected to
competition in connection with which such act is performed, may have
remedy by civil action. (7 U.S.C. 2568.)
Sec. 129. Nonresident Proprietors; Service and Notice.
Every owner not residing in the United States may file in the Plant
Variety Protection Office a written designation stating the name and
address of a person residing within the United States on whom may be
served process or notice of proceedings affecting the plant variety
protection or rights thereunder. If the person designated cannot be
found at the address given in the last designation, or if no person has
been designated, the United States District Court for the District of
Columbia shall have jurisdiction and summons shall be served by
publication or otherwise as the court directs. The court shall have the
same jurisdiction to take any action respecting the plant variety
protection, or rights thereunder that it would have if the owner were
personally within the jurisdiction of the court. (7 U.S.C. 2569.)
Sec. 130. Liability of States, Instrumentalities of States, and State
Officials for Infringement of Plant Variety Protection.
(a) Any State, any instrumentality of a State, and any officer or
employee of a State or instrumentality of a State acting in the official
capacity of the officer or employee, shall not be immune, under the
eleventh amendment of the Constitution of the United States or under any
other doctrine of sovereign immunity, from suit in Federal court by any
person, including any governmental or nongovernmental entity, for
infringement of plant variety protection under section 111, or for any
other violation under this title.
(b) In a suit described in subsection (a) for a violation described
in that subsection, remedies (including remedies both at law and in
equity) are available for the violation to the same extent as such
remedies are available for such a violation in a suit against any
private entity. Such remedies include damages, interest, costs, and
treble damages under section 124, and attorney fees under section 125.
(7 U.S.C. 2570.)
CHAPTER 13: INTENT AND
Sec. 131. Intent.
It is the intent of Congress to provide the indicated protection for
new varieties by exercise of any constitutional power needed for that
end, so as to afford adequate encouragement for research, and for
marketing when appropriate, to yield for the public the benefits of new
varieties. Constitutional clauses 3 and 8 of article I, section 8 are
both relied upon. (7 U.S.C. 2581.)
Sec. 132. Severability.
If this Act is held unconstitutional as to some provisions or
circumstances, it shall remain in force as to the remaining provisions
and other circumstances. (7 U.S.C. 2582.)
CHAPTER 14: TEMPORARY
PROVISION AND RELATED ENACTMENTS; EXEMPTED PLANTS; MISCELLANEOUS
Sec. 141. Effective Date.
This Act shall take effect upon enactment. Applications may be filed
with the Secretary and held by him until the Office of Plant Variety
Protection is organized and in operation. (7 U.S.C. 2321.)
Sec. 142. Amendment of Federal Seed Act. (7 U.S.C. 1551.)
Sec. 143. Amendment of Judicial Code. (28 U.S.C. 1545.)
Sec. 144. Repealed. (7 U.S.C. 2583.)
Sec. 145. Short Title.
This Act may be cited as the "Plant Variety Protection Act''. (7
U.S.C. 2321 note.)
REGULATIONS AND RULES OF PRACTICE
PART 97 -- PLANT VARIETY AND
' 97.1 General.
Certificates of protection are issued by the Plant Variety Protection
Office for new, distinct, uniform, and stable varieties of sexually
reproduced or tuber propagated plants. Each certificate of plant variety
protection certifies that the breeder has the right, during the term of
the protection, to prevent others from selling the variety, offering it
for sale, reproducing it, importing or exporting it, conditioning it,
stocking it, or using it in producing a hybrid or different variety from
it, as provided by the Act.
' 97.2 Meaning of words.
Words used in the regulations in this part in the singular form will
import the plural, and vice versa, as the case may demand. The
definitions of terms contained in the Act shall apply to such terms when
used in this part. As used throughout the regulations in this part,
unless the context requires otherwise, the following terms will be
construed to mean:
Abandoned application. An application which has not been pursued
to completion within the time allowed by the Office or has been
Act. The Plant Variety Protection Act (7 U.S.C. 2321 et seq.).
Administrator. The Administrator of the Agricultural Marketing
Service of the U.S. Department of Agriculture, or any other officer or
employee of the Department of Agriculture to whom authority has
heretofore been delegated, or to whom authority may hereafter be
delegated, to act in his or her stead.
Applicant. The person who applied for a certificate of plant
Application. An application for plant variety protection under
Assignee. A person to whom an owner assigns his/her rights in
whole or in part.
Board. The Plant Variety Protection Board appointed by the
Certificate. A certificate of plant variety protection issued
under the Act by the Office.
Certified seed. Seed which has been determined by an official
seed certifying agency to conform to standards of genetic purity and
identity as to variety, which standards have been approved by the
Commissioner. The Examiner in Chief of the Office.
Decision and order. Includes the Secretary's findings of fact;
conclusions with respect to all material issues of fact and law, as well
as the reasons or basis therefor; and order.
Examiner. An employee of the Plant Variety Protection Office who
determines whether a certificate is entitled to be issued. The term
shall, in all cases, include the Commissioner.
Foreign application. An application for plant variety protection
filed in a foreign country.
Hearing Clerk. The Hearing Clerk, U.S. Department of Agriculture,
Hearing Officer. An Administrative Law Judge, U.S. Department of
Agriculture, or other officer or employee of the Department of
Agriculture, duly assigned to preside at a hearing held pursuant to the
rules of this part.
Office or Plant Variety Protection Office. The Plant Variety
Protection Office, Science and Technology Division, AMS, USDA.
Official Journal. The "Official Journal of the Plant Variety
Owner. A breeder who developed or discovered a variety for which
plant variety protection may be applied for under the Act, or a person
to whom the rights to such variety have been assigned or transferred.
Person. An individual, partnership, corporation, association,
government agency, or other business or governmental entity.
Secretary. The Secretary of Agriculture of the United States or
any other officer or employee of the U.S. Department of Agriculture, to
whom authority has heretofore been delegated, or to whom authority may
hereafter be delegated to act in his or her stead.
Seed certifying agency. It shall be defined as set forth in the
Federal Seed Act (53 Stat. 1275).
Sale for other than seed purposes. The transfer of title to and
possession of the seed by the owner to a grower or other person, for
reproduction for the owner, for testing, or for experimental use, and
not for commercial sale of the seed or the reproduced seed for planting
' 97.3 Plant Variety Protection Board.
(a) The Plant Variety Protection Board shall consist of 14 members
appointed for a 2-year term. The Board shall be appointed every 2 years
and shall consist of individuals who are experts in various areas of
varietal development. The membership of the Board, which shall include
farmer representation, shall be drawn approximately equally from the
private or seed industry sector and from the government or public
sector. No member shall be eligible to act on any matter involving any
appeal or questions under section 44 of the Act, in which the member or
his or her employer has a direct financial interest.
(b) The functions of the Board are to:
(1) advise the Secretary concerning adoption of rules and regulations
to facilitate the proper administration of the Act;
(2) make advisory decisions on all appeals from the examiner or
(3) advise the Secretary on the declaration of a protected variety
open to use in the public interest; and
(4) advise the Secretary on any other matters under the regulations
in this part.
(c) The proceedings of the Board shall be conducted in accordance
with the Federal Advisory Committee Act, Administrative Regulations of
the U.S. Department of Agriculture (7 CFR Part 25), and such additional
operating procedures as are adopted by members of the Board.
' 97.5 General requirements.
(a) Protection under the Act shall be afforded only as follows:
(1) Nationals and residents of the United States shall be eligible to
receive all of the protection under the Act.
(2) Nationals and residents of Member States of the International
Union for the Protection of New Varieties of Plants (including states
which are members of an intergovernmental organization which is a UPOV
member) shall be eligible to receive the same protection under
the Act as is provided to nationals of the United States.
(3) Persons who are not entitled to protection under paragraph (a)(1)
or (2) of this section, and who are nationals of a foreign state which
is not a member of the International Union for the Protection of New
Varieties of Plants, shall be entitled to only so much of the protection
provided under the Act, as is afforded by such foreign state to
nationals of the United States, for the same genus and species under the
laws of such foreign state in effect at the time that the application
for protection under the Act is filed, except where further protection
under the Act must be provided in order to avoid the violation of a
treaty to which the United States is a party.
(b) Applications for certificates shall be made to the Plant Variety
Protection Office. An application shall consist of:
(1) A completed application form, except that the section specifying
that seed of the variety shall be sold by variety name only as a class
of certified seed, need not be completed at the time of application.
(2) A completed set of the exhibits, as specified in the application
form, unless the examiner waives submission of certain exhibits as
unnecessary, based on other claims and evidence presented in connection
with the application.
(3) Language and legibility:
(i) Applications and exhibits must be in the English language and
legibly written, typed or printed.
(ii) Any interlineation, erasure, cancellation, or other alteration
must be made in permanent ink before the application is signed and shall
be clearly initialed and dated by the applicant to indicate knowledge of
such fact at the time of signing.
(4) To determine the extent of reciprocity of the protection to be
provided under the Act, persons filing an application for plant variety
protection in the United States under the provisions of paragraph (a)(3)
of this section shall, upon request, furnish the Plant Variety
Protection Office with a copy of the current plant variety protection
laws and regulations for the country of which the applicant is a
national, and an accurate English translation of such laws and
(c) Application and exhibit forms shall be issued by the
Commissioner. (Copies of the forms may be obtained from the Plant
Variety Protection Office, Science and Technology Division, AMS, USDA,
Room 500, National Agricultural Library Building, Beltsville, Maryland
(d) Effective the date of these regulations and rules of practice,
the signature of the applicant, or his or her agent or attorney on any
affidavit or other statement filed pursuant to these regulations and
rules constitutes a certification by the applicant. The signature
certifies that all information relied on in any affidavit or statement
filed in the course of the proceeding is knowingly correct and false
claims have not been made to mislead.
' 97.6 Application for certificate.
(a) An application for a plant variety protection certificate shall
be signed by, or on behalf, of the applicant.
(b) The application shall state the full name, including the full
first name and the middle initial or name, if any, and the capacity of
the person executing it.
(c) The fees for filing an application, and search or examination,
shall be submitted with the application in accordance with sections
97.175 through 97.178.
(d) The applicant shall submit with the application:
(1) at least 2,500 seeds of the viable basic seed required to
reproduce the variety;
(2) with the application for a tuber propagated variety, verification
that a viable cell culture has been deposited in a public depository
approved by the Commissioner and will be maintained for the duration of
the certificate; or
(3) with the application for a hybrid from self-incompatible parents,
verification that a plot of vegetative material for each parent has been
established in a public depository approved by the Commissioner and will
be maintained for the duration of the certificate.
' 97.7 [Reserved]
' 97.8 Specimen requirements.
(a) The applicant may be required by the examiner to furnish
representative specimens of the variety, or its flower, fruit, or seeds,
in a quantity and at a specified stage of growth, as may be necessary to
verify the statements in the application. Such specimens shall be packed
and forwarded in conformity with instructions furnished by the examiner.
If the applicant requests the examiner to inspect plants in the field
before a final decision is made, all such inspection costs shall be
borne by the applicant by payment of fees sufficient to reimburse the
Office for all costs, including travel, per diem or subsistence, and
(b) Plant specimens submitted in support of an application shall not
be removed from the Office except by an employee of the Office or other
person authorized by the Secretary.
(c) Plant specimens submitted to the Office shall, except as provided
below, and upon request, be returned to the applicant at his or her
expense after the specimens have served their intended purpose. The
Commissioner, upon a finding of good cause, may require that certain
specimens be retained in the Office for indefinite periods of time.
Specimens which are not returned or not retained as provided above shall
' 97.9 Drawings and photographs.
(a) Drawings or photographs submitted with an application shall
disclose the distinctive characteristics of the variety.
(b) Drawings or photographs shall be in color when color is a
distinguishing characteristic of the variety, and the color shall be
described by use of Nickerson's or other recognized color chart.
(c) Drawings should be sent flat, or may be sent in a suitable
mailing tube, in accordance with instructions furnished by the
(d) Drawings or photographs submitted with an application shall be
retained by the Office as part of the application file.
' 97.10 Parts of an application to be filed together.
All parts of an application, including exhibits, should be submitted
to the Office together, otherwise, each part shall be accurately and
clearly referenced to the application.
' 97.11 Application accepted and filed when received.
(a) An application, if materially complete when initially submitted,
shall be accepted and filed to await examination.
(b) If any part of an application is so incomplete, or so defective
that it cannot be handled as a completed application for examination, as
determined by the Commissioner, the applicant will be notified. The
application will be held a maximum of 3 months for
completion. Applications not completed at the end of the prescribed
period will be considered abandoned. The application fee in such cases
will not be refunded.
' 97.12 Number and filing date of an application.
(a) Applications shall be numbered and dated in sequence in the order
received in the Office. Applicants will be informed in writing as soon
as practicable of the number and effective filing date of the
(b) An applicant may claim the benefit of the filing date of a prior
foreign application in accordance with section 55 of the Act. A
certified copy of the foreign application shall be filed upon request
made by the examiner. If a foreign application is not in the English
language, an English translation, certified as accurate by a sworn or
official translator, shall be submitted with the application.
' 97.13 When the owner is deceased or legally incapacitated.
In case of the death of the owner or if the owner is legally
incapacitated, the legal representative (executor, administrator, or
guardian) or heir or assignee of the deceased owner may sign as the
applicant. If an applicant dies between the filing of his or her
application and the granting of a certificate thereon, the certificate
may be issued to the legal representative, heir, or assignee, upon
' 97.14 Joint applicants.
(a) Joint owners shall file a joint application by signing as joint
(b) If an application for certificate is made by two or more persons
as joint owners, when they were not in fact joint owners, the
application shall be amended prior to issuance of a certificate by
filing a corrected application, together with a written explanation
signed by the original applicants. Such statement shall also be signed
by the assignee, if any.
(c) If an application has been made by less than all the actual joint
owners, the application shall be amended by filing a corrected
application, together with a written explanation, signed by all of the
joint owners. Such statement shall also be signed by the assignee, if
(d) If a joint owner refuses to join in an application or cannot be
found after diligent effort, the remaining owner may file an application
on behalf of him or herself and the missing owner. Such application
shall be accompanied by a written explanation and shall state the last
known address of the missing owner. Notice of the filing of the
application shall be forwarded by the Office to the missing owner at the
last known address. If such notice is returned to the Office
undelivered, or if the address of the missing owner is unknown, notice
of the filing of the application shall be published once in the Official
Journal. Prior to the issuance of the certificate, a missing owner may
join in an application by filing a written explanation. A certificate
obtained by less than all of the joint owners under this paragraph
conveys the same rights and privileges to said owners as though all of
the original owners had joined in an application.
' 97.15 Assigned varieties and certificates.
In case the whole or a part interest in a variety is assigned, the
application shall be made by the owner or one of the persons identified
in section 97.13. However, the certificate may be issued to the
assignee, or jointly to the owner and the assignee, when a part interest
in a variety is assigned.
' 97.16 Amendment by applicant.
An application may be amended before or after the first examination
and action by the Office, after the second or subsequent examination or
reconsideration as specified in section 97.107, or when and as
specifically required by the examiner. Such amendment may include a
specification that seed of the variety be sold by variety name only as a
class of certified seed, if not previously specified or if previously
declined. Once an affirmative specification is made, no amendment to
reverse such a specification will be permitted unless the variety has
not been sold and labeled or publication made in any manner that the
variety is to be sold by variety name, only as a class of certified
' 97.17 Papers of completed application to be retained.
The papers submitted with a completed application shall be retained
by the Office except as provided in section 97.23(c). After issuance of
a certificate of protection the Office will furnish copies of the
application and related papers to any person upon payment of the
' 97.18 Applications handled in confidence.
(a) Pending applications shall be handled in confidence. Except as
provided below, no information may be given by the Office respecting the
filing of an application, the pendency of any particular application, or
the subject matter of any particular application. Also, nor will access
be given to or copies furnished of any pending application or papers
relating thereto, without written authority of the applicant, or his or
her assignee or attorney or agent. Exceptions to the above may be made
by the Commissioner in accordance with 5 U.S.C. 552 and section 1.4 of
this title, and upon a finding that such action is necessary to the
proper conduct of the affairs of the Office, or to carry out the
provisions of any Act of Congress, or as provided in sections 56 or 57
of the Act and section 97.19.
(b) Abandoned applications shall not be open to public inspection.
However, if an abandoned application is directly referred to in an
issued certificate and is available, it may be inspected or copies
obtained by any person on written request, and with written authority
received from the applicant. Abandoned applications shall not be
(c) Decisions of the Commissioner on abandoned applications not
otherwise open to public inspection (see paragraph (b) of this section)
may be published or made available for publication at the Commissioner's
discretion. When it is proposed to release such a decision, the
applicant shall be notified directly or through the attorney or agent of
record, and a time, not less than 30 days, shall be set for presenting
' 97.19 Publication of pending applications.
Information relating to pending applications shall be published in
the Official Journal periodically as determined by the Commissioner to
be necessary in the public interest. With respect to each application,
the Official Journal shall show:
(a) application number and date of filing;
(b) the name of the variety or temporary designation;
(c) the name of the kind of seed; and
(d) whether the applicant specified that the variety is to be sold by
variety name only as a class of certified seed, together with a
limitation in the number of generations that it can be certified.
Additional information, such as the name and address of the applicant or
a brief description of the distinctive features of the variety, may be
published only upon request or approval received from the applicant, at
the time the application is filed or at any time before the notice of
allowance of a certificate is issued.
' 97.20 Abandonment for failure to respond within the time
(a) Except as otherwise provided in section 97.104, if an applicant
fails to advance actively his or her application within 30 days after
the date when the last request for action was mailed to the applicant by
the Office, or within such longer time as may be fixed by the
Commissioner, the application shall be deemed abandoned. The application
fee in such cases will not be refunded.
(b) The submission of an amendment to the application, not responsive
to the last request by the Office for action, and any proceedings
relative thereto, shall not operate to save the application from
(c) When the applicant makes a bona fide attempt to advance the
application, and is in substantial compliance with the request for
action, but has inadvertently failed to comply with some procedural
requirement, opportunity to comply with the procedural requirement shall
be given to the applicant before the application shall be deemed
abandoned. The Commissioner may set a period, not less than 30 days, to
correct any deficiency in the application.
' 97.21 Extension of time for a reply.
The time for reply by an applicant to a request by the Office for
certain action, shall be extended by the Commissioner only for good and
sufficient cause, and for a specified reasonable time. A request for
extension and appropriate fee shall be filed on or before the specified
time for reply. In no case shall the mere filing of a request for
extension require the granting of an extension or state the time for
' 97.22 Revival of an application abandoned for failure to
An application abandoned for failure on the part of the applicant to
advance actively his or her application to its completion, in accordance
with the regulations in this part, may be revived as a pending
application within 3 months of such abandonment, upon a finding by the
Commissioner that the failure was inadvertent or unavoidable and without
fraudulent intent. A request to revive an abandoned application shall be
accompanied by a written statement showing the cause of the failure to
respond, a response to the last request for action, and by the specified
' 97.23 Voluntary withdrawal and abandonment of an
(a) An application may be voluntarily withdrawn or abandoned by
submitting to the Office a written request for withdrawal or
abandonment, signed by the applicant or his or her attorney or agent of
record, if any, or the assignee of record, if any.
(b) An application which has been voluntarily abandoned may be
revived within 3 months of such abandonment by the payment of the
prescribed fee and a showing that the abandonment occurred without
(c) An original application which has been voluntarily withdrawn
shall be returned to the applicant and may be reconsidered only by
refiling and payment of a new application fee.
(d) Transitional provision. An applicant whose application is pending
on April 4, 1995, may notify the Plant Variety Protection Office in
writing that he or she wishes to withdraw the application and refile it
under the Plant Variety Protection Act as amended in 1994. Payment of
the current application fee is required but no other formalities are
' 97.24 Assignee.
The assignee of record of the entire interest in an application is
entitled to advance actively or abandon the application to the exclusion
of the applicant.
' 97.100 Examination of applications.
(b) Examinations of applications shall include a review of all
available documents, publications, or other material relating to
varieties of the species involved in the application, except that if
there are fundamental defects in the application, as determined by the
examiner, the examination may be limited to an identification of such
defects and notification to the applicant of needed corrective action.
However, matters of form or procedure need not, but may, be raised by an
examiner until a variety is found to be new, distinct, uniform, and
stable and entitled to protection.
' 97.101 Notice of allowance.
If, on examination, it shall appear that the applicant is entitled to
a certificate, a notice of allowance shall be sent to the applicant or
his or her attorney or agent of record, if any, calling for the payment
of the prescribed fee, which fee shall be paid within 1 month from the
date of the notice of allowance. Thereafter, a fee for delayed payment
shall be made as required under section 97.175.
' 97.102 Amendments after allowance.
Amendments to the application, after the notice of allowance is
issued, may be made, if the certificate has not been issued.
' 97.103 Issuance of a certificate.
(a) After the notice of allowance has been issued, the prescribed fee
is received by the Office, and the applicant has clearly specified
whether or not the variety shall be sold by variety name only as a class
of certified seed, the certificate shall be promptly issued. Once an
election is made and a certificate issued specifying that seed of the
variety shall be sold by variety name only as a class of certified seed,
no waiver of such rights shall be permitted by amendment of the
(b) The certificate shall be delivered or mailed to the owner.
' 97.104 Application or certificate abandoned.
(a) Except as provided in paragraph (c) of this section, if the fee
specified in the notice of allowance is not paid within 1 month from the
date of the notice, the application shall be considered abandoned.
(b) Upon request by the Office, the owner shall replenish the viable
basic seed sample of the variety. Upon request, the sample of seed which
has been replaced shall be returned to the owner, otherwise it shall be
destroyed. Failure to replenish viable basic seed within 3 months from
the date of request shall result in the certificate being regarded as
abandoned. No sooner than 1 year after the date of such request, notices
of abandoned certificates shall be published in the Official Journal,
indicating that the variety has become open for use by the public and,
if previously specified to be sold by variety name as "certified
seed only," that such restriction no longer applies.
(c) If the allowance fee, the viable basic seed sample or the fee for
delayed payment are submitted within 9 months of the final due date, it
may be accepted by the Commissioner as though no abandonment had
occurred. For good cause, the Commissioner may extend for a reasonable
time the period for submitting a viable basic seed sample before
declaring the certificate abandoned.
(d) A certificate may be voluntarily abandoned by the applicant or
his or her attorney or agent of record or the assignee of record by
notifying the Commissioner in writing. Upon receipt of such notice, the
Commissioner shall publish a notice in the Official Journal that the
variety has become open for use by the public, and if previously
specified to be sold by variety name as "certified seed only,"
that such restriction no longer applies.
' 97.105 Denial of an application.
(a) If the variety is found by the examiner to be not new, distinct,
uniform, and stable, the application shall be denied.
(b) In denying an application, the examiner shall cite the reasons
the application was denied.
When a reason involves the citation of certain material which is
complex, the particular part of the material relied on shall be
designated as nearly as practicable. The pertinence of each reason, if
not obvious, shall be clearly explained.
(c) If prior domestic certificates are cited as a reason for denial,
their numbers and dates and the names of the owners shall be stated. If
prior foreign certificates or rights are cited, as a reason for denial,
their nationality or country, numbers and dates, and the names of the
owners shall be stated, and such other data shall be furnished, as may
be necessary to enable the applicant to identify the cited certificates
(d) If printed publications are cited as a reason for denial, the
author (if any), title, date, pages or plates, and places of
publication, or place where a copy can be found shall be given.
(e) When a denial is based on facts known to the examiner, and upon
request by the applicant, the denial shall be supported by the affidavit
of the examiner. Such affidavit shall be subject to contradiction or
explanation by the affidavits of the applicant and other persons.
(f) Abandoned applications may not be cited as reasons for denial.
' 97.106 Reply by applicant; request for reconsideration.
(a) After an adverse action by the examiner, the applicant may
respond to the denial and may request a reconsideration, with or without
amendment of his or her application. Any amendment shall be responsive
to the reason or reasons for denial specified by the examiner.
(b) To obtain a reconsideration, the applicant shall submit a request
for reconsideration in writing and shall specifically point out the
alleged errors in the examiner's action. The applicant shall respond to
each reason cited by the examiner as the basis for the adverse action. A
request for reconsideration of a denial based on a faulty form or
procedure may be held in abeyance by the Commissioner until the question
of the variety being new, distinct, uniform, and stable is settled.
(c) An applicant's request for a reconsideration must be a bona fide
attempt to advance the case to final action. A general allegation by the
applicant that certain language which he or she cites in the application
or amendment thereto establishes the variety is new, distinct, uniform,
and stable without specifically explaining how the language
distinguishes the alleged new, distinct, uniform, and stable variety
from the material cited by the examiner shall not be grounds for a
' 97.107 Reconsideration and final action.
If, upon reconsideration, the application is denied by the
Commissioner, the applicant shall be notified by the Commissioner of the
reason or reasons for denial in the same manner as after the first
examination. Any such denial shall be final unless appealed by the
applicant to the Secretary within 60 days from the date of denial, in
accordance with sections 97.300-97.303. If the denial is sustained by
the Secretary on appeal, the denial shall be final subject to appeal to
the courts, as provided in section 97.500.
' 97.108 Amendments after final action.
(a) After a final denial by the Commissioner, amendments to the
application may be made to overcome the reason or reasons for denial.
The acceptance or refusal of any such amendment by the Office and any
proceedings relative thereto shall not relieve the applicant from the
time limit set for an appeal or an abandonment for failure to reply.
(b) No amendment of the application can be made in an appeal
proceeding. After decision on appeal, amendments can only be made to
carry into effect a recommendation under section 97.302(b).
' 97.120 Corrected certificate--office mistake.
When a certificate is incorrect because of a mistake in the Office,
the Commissioner may issue a corrected certificate stating the fact and
nature of such mistake, under seal, without charge, to be issued to the
owner and recorded in the records at the Office.
' 97.121 Corrected certificate--applicant's mistake.
hen a certificate is incorrect because of a mistake by the applicant
of a clerical or typographical nature, or of minor character, or in the
description of the variety (including, but not limited to, the use of a
misleading variety name or a name assigned to a different variety of the
same species), and the mistake is found by the Commissioner to have
occurred in good faith and does not require a further examination, the
Commissioner may, upon payment of the required fee and return of the
original certificate, correct the certificate by issuing a corrected
certificate, in accordance with section 85 of the Act. If the mistake
requires a reexamination, a correction of the certificate shall be
dependent on the results of the reexamination.
' 97.122 Certified seed only election.
When an owner elects after a certificate is issued to sell the
protected variety by variety name only as a class of certified seed, a
new certificate may be issued upon return of the original certificate to
the Office and payment of the appropriate fee.
' 97.130 Recording of assignments.
(a) Any assignment of an application for a certificate, or of a
certificate of plant variety protection, or of any interest in a
variety, or any license or grant and conveyance of any right to use of
the variety, may be submitted for recording in the Office in accordance
with section 101 of the Act (7 U.S.C. 2531).
(b) No instrument shall be recorded which is not in the English
language or which does not identify the certificate or application to
which it relates.
(c) An instrument relating to title of a certificate shall identify
the certificate by number and date, the name of the owner, and the name
of the variety as stated in the certificate. An instrument relating to
title of an application shall identify an application by number and date
of filing, the name of the owner, and the name of the variety as stated
in the application.
(d) If an assignment is executed concurrently or subsequent to the
filing of an application, but before its number and filing date are
ascertained, the assignment shall identify the application by the date
of the application, the name of the owner, and the name of the variety.
' 97.131 Conditional assignments.
Assignments recorded in the Office are regarded as absolute
assignments for Office purposes until canceled in writing by both
parties to the assignment or by a decree of a court of competent
jurisdiction. The Office shall not determine whether conditions
precedent to the assignment, such as the payment of money, have been
' 97.132 Assignment records open to public inspection.
(a) Assignment records relating to original or amended certificates
shall be open to public inspection and copies of any recorded document
may be obtained upon payment of the prescribed fee.
(b) Assignment records relating to any pending or abandoned
application shall not be available for inspection except to the extent
that pending applications are published as provided in section 57 of the
Act and section 97.19, or where necessary to carry out the provisions of
any Act of Congress. Copies of assignment records and information on
pending or abandoned applications shall be obtainable only upon written
authority of the applicant or his or her assignee, or attorney or agent
of record, or where necessary to carry out the provisions of any Act of
Congress. An order for a copy of an assignment shall give the proper
identification of the assignment.
' 97.140 After filing.
Upon filing an application for protection of a variety and payment of
the prescribed fee, the owner, or his or her designee, may label the
variety or containers of the seed of the variety or plants produced from
such seed, substantially as follows: "Unauthorized Propagation
Prohibited --(Unauthorized Seed Multiplication Prohibited) -U.S. Variety
Protection Applied For. Where applicable, "PVPA 1994" or
"PVPA 1994 - Unauthorized Sales for Reproductive Purposes
Prohibited" may be added to the notice.
' 97.141 After issuance.
Upon issuance of a certificate, the owner of the variety, or his or
her designee, may label the variety or containers of the seed of the
variety or plants produced from such seed substantially as follows:
"Unauthorized Propagation Prohibited--(Unauthorized Seed
Multiplication Prohibited) U.S. Protected Variety. "Where
applicable, "PVPA 1994" or "PVPA 1994 - Unauthorized
Sales for Reproductive Purposes Prohibited" may be added to the
' 97.142 For testing or increase.
An owner who contemplates filing an application and releases for
testing or increase, seed of the variety or reproducible plant material
of the variety, may label such plant material or containers of the seed
or plant material substantially as follows: "Unauthorized
Propagation Prohibited--For Testing (or Increase) Only."
' 97.143 Certified seed only.
(a) Upon filing an application, or amendment thereto, specifying seed
of the variety is to be sold by variety name only as a class of
certified seed, the owner, or his or her designee, may label containers
of seed of the variety substantially as follows: "Unauthorized
Propagation Prohibited--U.S. Variety Protection Applied for Specifying
That Seed of This Variety Is To Be Sold By Variety Name Only as a Class
of Certified Seed."
(b) An owner who has received a certificate specifying that a variety
is to be sold by variety name only, as a class of certified seed, may
label containers of the seed of the variety substantially as follows:
"Unauthorized Propagation Prohibited --To Be Sold By Variety Name
Only as a Class of Certified Seed --U.S. Protected Variety ."
' 97.144 Additional marking or labeling.
Additional clarifying information that is not false or misleading may
be used by the owner, in addition to the above markings or labeling.
' 97.150 Right to be represented.
An applicant may actively advance an application or may be
represented by an attorney or agent authorized in writing.
' 97.151 Authorization.
Only attorneys or agents specified by the applicant shall be allowed
to inspect papers or take action of any kind, on behalf of the
applicant, in any pending application or proceedings.
' 97.152 Revocation of authorization; withdrawal.
An authorization of an attorney or agent may be revoked by an
applicant at any time, and an attorney or agent may withdraw, upon
application to the Commissioner. When the authorization is so revoked,
or the attorney or agent has so withdrawn, the Office shall inform the
interested parties and shall thereafter communicate directly with the
applicant, or with such other attorney or agent as the applicant may
appoint. An assignment will not of itself operate as a revocation of
authorization previously given, but the assignee of the entire interest
may revoke previous authorizations and be represented by an attorney or
agent of his or her own selection.
' 97.153 Persons recognized.
Unless specifically authorized as provided in section 97.151, no
person shall be permitted to file or advance applications before the
Office on behalf of another person.
' 97.154 Government employees.
Officers and employees of the United States who are disqualified by
statute (18 U.S.C. 203 and 205) from practicing as attorneys or agents
in proceedings or other matters before government departments or
agencies, shall not be eligible to represent applicants, except officers
and employees whose official duties require the preparation and
prosecution of applications for certificates of variety protection.
' 97.155 Signatures.
Every document filed by an attorney or agent representing an
applicant or party to a proceeding in the Office shall bear the
signature of such attorney or agent, except documents which are required
to be signed by the applicant or party.
' 97.156 Addresses.
Attorneys and agents practicing before the Plant Variety Protection
Office shall notify the Office in writing of any change of address. The
Office shall address letters to any person at the last address received.
' 97.157 Professional conduct.
Attorneys and agents appearing before the Office shall conform to the
standards of ethical and professional conduct, generally applicable to
attorneys appearing before the courts of the United States.
' 97.158 Advertising.
(a) The use of advertising, circulars, letters, cards, and similar
material to solicit plant variety protection business, directly or
indirectly, is forbidden as unprofessional conduct, and any person
engaging in such solicitation, or associated with or employed by others
who so solicit, shall be refused recognition to practice before the
Office or may be suspended, excluded, or disbarred from further practice
before the Office.
(b) The use of simple professional letterheads, calling cards, or
office signs, simple announcements necessitated by opening an office,
change of association, or change of address, distributed to clients and
friends and insertion of listings in common form (not display) in a
classified telephone or city directory, and listings and professional
cards with biographical data in standard professional directories, shall
not be considered a violation of this section.
FEES AND CHARGES
' 97.175 Fees and charges.
The following fees and charges apply to the services and actions
|(a) Filing the application and
notifying the public of filing
|(b) Search or examination
|(c) Allowance and issuance of
certificate and notifying public of issuance
|(d) Revive an abandoned application
|(e) Reproduction of records,
drawings, certificates, exhibits, or printed material (copy per page of material)
|(f) Authentication (each page)
|(g) Correcting or reissuance of a
|(h) Recording assignments (per
|(i) Copies of 8 x 10 photographs in
|(j) Additional fee for
|(k) Additional fee for late payment
|(l) Additional fee for late
replenishment of seed
|(m) Appeal to Secretary (refundable
if appeal overturns the Commissioner's
|(n) Granting of extensions for
responding to a request
|(o) Field inspections
by a representative of the Plant Variety Protection Office made
at the request of the applicant shall be reimbursable in full
(including travel, per diem or subsistence, and salary) in
accordance with Standardized Government Travel Regulations.
|(p) Any other service
not covered above will be charged for at rates prescribed by the
Commissioner, but in no event shall they exceed $60 per
' 97.176 Fees payable in advance.
Fees and charges shall be paid at the time of making application or
at the time of submitting a request for any action by the Office for
which a fee or charge is payable and established in this part.
' 97.177 Method of payment.
Checks or money orders shall be made payable to the Treasurer of the
United States. Remittances from foreign countries must be payable and
immediately negotiable in the United States for the full amount of the
prescribed fee. Money sent by mail to the Office shall be sent at the
' 97.178 Refunds.
Money paid by mistake or excess payments shall be refunded, but a
mere change of plans after the payment of money, as when a party decides
to withdraw an application or to withdraw an appeal, shall not entitle a
party to a refund. However, the examination or search fee shall be
refunded if an application is voluntarily abandoned pursuant to section
97.23(a) before a search or examination has begun. Amounts of $1 or less
shall not be refunded unless specifically demanded.
' 97.179 Copies and certified copies.
(a) Upon request, copies of applications, certificates, or of any
records, books, papers, drawings, or photographs in the custody of the
Office and which are open to the public, will be furnished to persons
entitled thereto, upon payment of the prescribed fee.
(b) Upon request, copies will be authenticated by imprint of the seal
of the Office and certified by the official, authorized by the
Commissioner upon payment of the prescribed fee.
AVAILABILITY OF OFFICE RECORDS
' 97.190 When open records are available.
Copies of records, which are open to the public and in the custody of
the Office, may be examined in the Office during regular business hours
upon approval by the Commissioner.
' 97.200 Protests to the grant of a certificate.
Opposition on the part of any person to the granting of a certificate
shall be permitted while an application is pending and for a period not
to exceed 5 years following the issuance of a certificate.
' 97.201 Protest proceedings.
(a) Opposition shall be made by submitting in writing a petition for
protest proceedings, which petition shall be supported by affidavits and
shall show the reason or reasons for opposing the application or
certificate. The petition and accompanying papers shall be filed in
duplicate. If it appears to an examiner that a variety involved in a
pending application or covered by a certificate may not be or may not
have been entitled to protection under the Act, a protest proceeding may
be permitted by the Commissioner.
(b) One copy of the petition and accompanying papers shall be served
by the Office upon the applicant or owner, or his or her attorney or
agent of record.
(c) An answer, by the applicant or owner of the certificate, or his
or her assignee, in response to the petition, may be filed with the
Commissioner within 60 days after service of the petition, upon such
person. If no answer is filed within said period, the Commissioner shall
decide the matter on the basis of the allegations set forth in the
(d) If the petition and answer raise any issue of fact needing proof,
the Commissioner shall afford each of the parties a period of 60 days in
which to file sworn statements or affidavits in support of their
(e) As soon as practicable after the petition or the petition and
answer are filed, or after the expiration of any period for filing sworn
statements or affidavits, the Commissioner shall issue a decision as to
whether the protests are upheld or denied. The Commissioner may,
following the protest proceeding, cancel any certificate issued and may
grant another certificate for the same variety to a person who proves to
the satisfaction of the Commissioner, that he or she is the breeder or
discoverer. The decision shall be served upon the parties in the manner
provided in section 97.403.
' 97.205 Definition; when declared.
A priority contest may be instituted by the Secretary, on his or her
own motion, or upon the request of any person who has applied for
protection on the same variety, for which an adverse certificate has
been issued, for the purpose of determining the question of priority
between two or more parties claiming development or discovery of the
same novel variety: Provided, however, That any person shall have
forfeited his or her right to assert priority when an adverse
certificate has been issued, if he or she fails to make a request for
the institution of a priority contest within 1 year of the publication
in the Official Journal of issuance of the adverse certificate by the
Secretary, or if he or she fails to make the request within the period
for taking action after refusal of the application on the basis of the
' 97.206 Preparation for priority contest between applicants.
(a) Before a priority contest will be handled by the Office, an
examiner must determine that the same novel variety is involved in
separate applications filed by two or more parties and apparently
certifiable to each of the parties, subject to the determination of the
question of priority.
(b) The fact that a certificate has been issued will not prevent a
' 97.207 Preparation of priority papers and declaration of
(a) When a priority question is found to exist, the examiner shall
forward the pertinent files to the Commissioner, together with a written
statement showing the reason for the contest.
(b) The Commissioner shall institute and declare the priority contest
by forwarding a notice to each of the applicants involved. Each notice
shall include the name and residence of each of the other applicants or
those of his or her attorney or agent, if any, and of any assignee, and
will identify the application of each opposing party by number and
filing date, or in the case of a certificate, by the number and date of
the certificate. The notice shall specify the basis of the priority
contest. The notice shall specify a time, not to exceed 2 months, for
filing preliminary statements.
(c) When a notice is returned to the Office undelivered, or when one
of the parties resides abroad and his or her agent in the United States
is unknown, notice may be given once by publication in the Official
' 97.208 Burden of proof.
The parties to a priority contest will be presumed to have developed
their varieties in the chronological order of the filing dates of their
applications for certificates involved in the priority contest, and the
burden of proof will rest upon the party who last filed an application.
' 97.209 Preliminary statement on novel variety developed in
the United States.
(a) Each party to the priority contest is required to file on or
before a date fixed by the Office, a concise preliminary statement
giving the facts and dates relating to the development of his or her
alleged novel variety. The preliminary statement must be signed by the
owner: Provided, however, That in appropriate circumstances, as
when the owner is dead or legally incapacitated, or a showing is made of
inability to obtain a statement from the owner, the preliminary
statement may be made by the assignee or by someone authorized or
entitled to make the statement, having knowledge of the facts.
(b) Preliminary statements shall be filed with the Office in
duplicate. A copy shall be forwarded to each opposing party by the
Office as soon as practicable after both parties have filed their
statements within the requisite period.
(c) In filing a preliminary statement each party must show the
(1) The date upon which the first determination of the novel variety
(2) The date upon which the first written description of the novel
variety was made. If a written description of the novel variety has not
been made prior to the filing date of the application, it must be so
(3) The date of the first act or acts susceptible of proof (other
than making a written description or disclosing the novel variety to
another person), which, if proven, would establish determination of the
novel variety, and a brief description of such act or acts. If there
have been no such acts, it must be so stated.
(4) The date of the actual production of the novel variety. If the
novel variety had not been actually produced before the filing date of
the application, it must be so stated.
(d) When an allegation as to the first written description (paragraph
(c)(2) of this section) is made, a copy of such written description
shall be attached to the statement.
(e) If a party intends to rely on a prior application, domestic or
foreign, the preliminary statement shall clearly identify such prior
application. Copies of the cited application and related documents will
be served by the Office, upon all interested parties to the contest. In
the case of an application filed in a foreign country, English
translations shall be served to all interested parties by the party
relying on the application filed in the foreign country.
' 97.210 Preliminary statement on novel variety developed in a
When the novel variety was developed in a foreign country, the
preliminary statement must show (a) the information specified in section
97.209 (c) through (e) and (b) whether, and if so, when and under what
circumstances the novel variety was introduced into the United States by
or on behalf of the party.
' 97.211 Statements sealed before filing.
The preliminary statement shall be submitted in a sealed envelope
bearing the name of the party filing it and the number and title of the
priority contest as shown on the notice issued by the Office. The
envelope should be enclosed in an outer mailing envelope marked "To
Be Opened Only by the Commissioner."
' 97.212 Correction of a statement on motion.
In case of material error arising through inadvertence or mistake, a
preliminary statement may be corrected upon a satisfactory showing to
the Commissioner that the correction is of material significance.
Correction of the statement must be made as soon as practicable after
the discovery of the error.
' 97.213 Failure to file statements.
If any party to a priority contest fails to file a preliminary
statement, he or she shall be restricted to his or her earliest
effective filing date.
' 97.214 Access to preliminary statements.
The preliminary statements shall be open to the inspection of any
party after the date set for the filing of preliminary statements
(section 97.207(b)), but shall not be open to inspection prior to that
' 97.215 Dissolution at the request of the Commissioner.
If during a priority contest, information is submitted or found
which, in the opinion of the Commissioner, may render the variety
ineligible for a certificate, the priority contest may be suspended by
the Commissioner and referred to an examiner for consideration of the
matter. The parties will be notified of the reason for the suspension.
Arguments of the parties regarding the suspension will be considered, if
filed within 60 days of the notification. The suspension will then be
continued, modified, or dismissed, in accordance with the determination
by the Commissioner.
' 97.216 Concession; abandonment.
(a) An applicant or a certificate holder involved in a priority
contest may, at any time, file a written concession of priority, or
abandonment of the certificate, signed by him or her. Upon the filing of
such an instrument by any party, the decision shall be rendered against
the interested party by the Commissioner.
(b) A concession of priority may not be made by an assignee of a part
' 97.217 Affidavits and exhibits.
Affidavits and exhibits, including official records and any special
matter contained in a printed publication, pertinent to the issue
involved in the contest, may be introduced as evidence in a priority
contest by any party to the contest. In the case of official records and
printed publications, the party introducing the evidence shall specify
the record or the printed publication, the page or pages to be used,
indicate generally its relevancy, and submit to the Commissioner the
record or authenticated copy, or the printed publication, or a copy.
Copies of affidavits and exhibits, including any record or publication,
shall be served by the Commissioner on each of the other interested
' 97.218 Matters considered in determining a priority.
In determining priority, the Commissioner will consider only priority
of development based on the evidence submitted. Questions of novelty
generally will not be considered in the decision on priority. The
Commissioner may refer proposed findings of fact, conclusions, and
notice of priority to the Board for an advisory decision.
' 97.219 Recommendation by the Commissioner.
The Commissioner may, either before or concurrently with a decision
on the question of priority, but independently of such decision, direct
the attention of the examiner to any matter not relating to priority
which may come to the Commissioner's attention, and which in his or her
opinion establishes the fact that there has been an irregularity which
amounts to a bar to the granting of a certificate to either of the
parties. The Commissioner may suspend the priority contest and remand
the case to the examiner for further consideration of the matters, to
which attention has been directed.
' 97.220 Decision by the Commissioner.
(a) When a priority contest is concluded on the basis of preliminary
statements, or proposed findings of fact, conclusions and notice of
priority shall be issued by the Commissioner to the interested parties,
giving them a specified period, not less than 30 days, to show cause why
such proposed findings of fact, conclusions, and notice of priority
should not be made final. Any response made during the specified period
will be considered by the Commissioner. Additional affidavits or
exhibits will not be considered, unless accompanied by a showing of good
cause acceptable to the Commissioner. Thereafter, final findings of
fact, conclusions, and notice of priority shall be issued by the
(b) The decision shall be entered by the Commissioner against a party
whose preliminary statement alleges a date of determination later than
the filing date of the other party's application.
' 97.221 Status of claims of defeated applicant.
Whenever a final notice of priority has been issued by the
Commissioner in a priority proceeding, and the time limit for an appeal
from such decision has expired, the claim or claims constituting the
issue of the priority stand finally disposed of without further action
by the Commissioner.
' 97.222 Second priority contest.
A second priority contest between the same parties shall not be
entertained by the Commissioner for the same novel variety.
97.300 Petition to the Secretary.
(a) Petition may be made to the Secretary from any final action of
the Commissioner denying an application or refusing to allow a
certificate to be issued, or from any adverse decision of the
Commissioner made under sections 97.18(c), 97.107, 97.201(e), and
(b) Any such petition shall contain a statement of the facts involved
and the point or points to be reviewed, and the actions requested.
(c) A petition to the Secretary shall be filed in duplicate and
accompanied by the prescribed fee (see section 97.175).
(d) Upon request, an opportunity to present data, views, and
arguments orally, in an informal manner or in a formal hearing, shall be
given to interested persons. If a formal hearing is requested, the
proceeding shall be conducted in accordance with the Rules of Practice
Governing Formal Adjudicatory Proceedings Instituted by the Secretary
Under Various Statutes set forth in ''1.130
through 1.151 of this title.
(e) Except as otherwise provided in the rules in this part, any such
petition not filed within 60 days from the action complained of shall be
dismissed as untimely.
' 97.301 Commissioner's answer.
(a) The Commissioner may, within such time as may be directed by the
Secretary, furnish a written statement to the Secretary in answer to the
appellant's petition, including such explanation of the reasons for the
action as may be necessary and supplying a copy to the appellant.
(b) Within 20 days from the date of such answer, the appellant may
file a reply statement directed only to such new points of argument as
may be raised in the Commissioner's answer.
' 97.302 Decision by the Secretary.
(a) The Secretary, after receiving the advice of the Board, may
affirm or reverse the decision of the Commissioner, in whole or in part.
(b) Should the decision of the Secretary include an explicit
statement that a certificate be allowed, based on an amended
application, the applicant shall have the right to amend his or her
application in conformity with such statement and such decision shall be
binding on the Commissioner.
' 97.303 Action following the decision.
(a) Copies of the decision of the Secretary shall be served upon the
appellant and the Commissioner in the manner provided in section 97.403.
(b) When an appeal petition is dismissed, or when the time for appeal
to the courts pursuant to the Act has expired and no such appeal or
civil action has been filed, proceedings in the appeal shall be
considered terminated as of the dismissal or expiration date, except in
those cases in which the nature of the decision requires further action
by the Commissioner. If the decision of the Secretary is appealed or a
civil action has been filed pursuant to the Act, the decision of the
Secretary will be stayed pending the outcome of the court appeal or
GENERAL PROCEDURES IN PRIORITY,
PROTEST, OR APPEAL PROCEEDINGS
' 97.400 Extensions of time.
Upon a showing of good cause, extensions of time not otherwise
provided for may be granted by the Commissioner or, if an appeal has
been filed by the Secretary for taking any action required in any
priority, protest, or appeal proceeding.
' 97.401 Miscellaneous provisions.
(a) Petitions for reconsideration or modification of the decision of
the Commissioner in priority or protest proceedings shall be filed
within 20 days after the date of the decision.
(b) The Commissioner may consider on petition any matter involving
abuse of discretion in the exercise of an examiner's authority, or such
other matters as may be deemed proper to consider. Any such petition, if
not filed within 20 days from the decision complained of, may be
dismissed as untimely.
' 97.402 Service of papers.
(a) Every paper required to be served on opposing parties and filed
in the Office in any priority, protest, or appeal proceeding, must be
served by the Secretary in the manner provided in section 97.403.
(b) The requirement in certain sections that a specified paper shall
be served includes a requirement that all related supporting papers
shall also be served. Proof of such service upon other parties to the
proceeding must be made before the supporting papers will be considered
by the Commissioner or Secretary.
' 97.403 Manner of service.
Service of any paper under this part must be on the attorney or agent
of the party if there be such, or on the party if there is no attorney
or agent, and may be made in any of the following ways:
(a) By mailing a copy of the paper to the person served by certified
mail, with the date of the return receipt controlling the date of
(b) By leaving a copy at the usual place of business of the person
served with someone in his or her employ;
(c) When the person served has no usual place of business, by leaving
a copy at his or her home with a member of the family over 14 years of
age and of discretion; and
(d) Whenever it shall be found by the Commissioner or Secretary that
none of the above modes of serving the paper is practicable, service may
be by notice, published once in the Office Journal.
' 97.500 Appeal to U.S. Courts.
Any applicant dissatisfied with the decision of the Secretary on
appeal may appeal to the U.S. Court of Customs and Patent Appeals or the
U.S. Courts of Appeals, or institute a civil action in the U.S. District
Court as set forth in the Act. In such cases, the appellant or plaintiff
shall give notice to the Secretary, state the reasons for appeal or
civil action, and obtain a certified copy of the record. The certified
copy of the record shall be forwarded to the ourt by the Plant Variety
Protection Office on order of, and at the expense of the appellant or
' 97.600 Rules of practice.
Any proceedings instituted under section 128 of the Act for false
marking shall be conducted in accordance with sections 202.10 through
202.29 of this chapter (rules of practice under the Federal Seed Act) (7
U.S.C. 1551 et seq.), except that all references in those rules
and regulations to "Examiner" shall be construed to be an
Administrative Law Judge, U.S. Department of Agriculture, and not an
"Examiner" as defined in the regulations under the Plant
Variety Protection Act.
PUBLIC USE DECLARATION
' 97.700 Public interest in wide usage.
(a) If the Secretary has reason to believe that a protected variety
should be declared open to use by the public in accordance with section
44 of the Act, the Secretary shall give the owner of the variety
appropriate notice and an opportunity to present views orally or in
writing, with regard to the necessity for such action to be taken in the
(b) Upon the expiration of the period for the presentation of views
by the owner, as provided in paragraph (a) of this section, the
Secretary shall refer the matter to the Plant Variety Protection Board
for advice, including advice on any limitations or rate of remuneration.
(c) Upon receiving the advice of the Plant Variety Protection Board,
the Secretary shall advise the owner of the variety, the members of the
Plant Variety Protection Board, and the public, by issuance of a press
release, of any decision based on the provisions of section 44 of the
Act to declare a variety open to use by the public. Any decision not to
declare a variety open to use by the public will be transmitted only to
the owner of the variety and the members of the Plant Variety Protection
' 97.800 Publication of public variety descriptions.
Voluntary submissions of varietal descriptions of "public
varieties" on forms obtainable from the Office will be accepted for
publication in the Official Journal. Such publication shall not
constitute recognition that the variety is, in fact, distinct, uniform,