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

103d CONGRESS
  1st Session
                                S. 1406

 To amend the Plant Variety Protection Act to make such Act consistent 
 with the International Convention for the Protection of New Varieties 
of Plants of March 19, 1991, to which the United States is a signatory, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

               August 6 (legislative day, June 30), 1993

Mr. Kerrey (for himself and Mr. Daschle) introduced the following bill; 
  which was read twice and referred to the Committee on Agriculture, 
                        Nutrition, and Forestry

_______________________________________________________________________

                                 A BILL


 
 To amend the Plant Variety Protection Act to make such Act consistent 
 with the International Convention for the Protection of New Varieties 
of Plants of March 19, 1991, to which the United States is a signatory, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES.

    (a) Short Title.--This Act may be cited as the ``Plant Variety 
Protection Act Amendments of 1993''.
    (b) References to Plant Variety Protection Act.--Except as 
otherwise expressly provided, whenever in this Act an amendment or 
repeal is expressed in terms of an amendment to, or repeal of, a 
section or other provision, the reference shall be considered to be 
made to a section or other provision of the Plant Variety Protection 
Act (7 U.S.C. 2321 et seq.).

SEC. 2. DEFINITIONS AND RULES OF CONSTRUCTION.

    Section 41 (7 U.S.C. 2401) is amended to read as follows:

``SEC. 41. DEFINITIONS AND RULES OF CONSTRUCTION.

    ``(a) Definitions.--As used in this Act:
            ``(1) Basic seed.--The term `basic seed' means the seed 
        planted to produce certified or commercial seed.
            ``(2) Breeder.--The term `breeder' means the person who 
        directs the final breeding creating a variety or who discovers 
        and develops a variety. If the actions are conducted by an 
        agent on behalf of a principal, the principal, rather than the 
        agent, shall be considered the breeder. The term does not 
        include a person who redevelops or rediscovers a variety the 
        existence of which is publicly known or a matter of common 
        knowledge.
            ``(3) Essentially derived variety.--
                    ``(A) In general.--The term `essentially derived 
                variety' means a variety that--
                            ``(i) is predominantly derived from another 
                        variety (referred to in this paragraph as the 
                        `initial variety') or from a variety that is 
                        predominantly derived from the initial variety, 
                        while retaining the expression of the essential 
                        characteristics that result from the genotype 
                        or combination of genotypes of the initial 
                        variety;
                            ``(ii) is clearly distinguishable from the 
                        initial variety; and
                            ``(iii) except for differences that result 
                        from the act of derivation, conforms to the 
                        initial variety in the expression of the 
                        essential characteristics that result from the 
                        genotype or combination of genotypes of the 
                        initial variety.
                    ``(B) Methods.--An essentially derived variety may 
                be obtained by the selection of a natural or induced 
                mutant or of a somaclonal variant, the selection of a 
                variant individual from plants of the initial variety, 
                backcrossing, transformation by genetic engineering, or 
                other method.
            ``(4) Kind.--The term `kind' means one or more related 
        species or subspecies singly or collectively known by one 
        common name, such as soybean, flax, or radish.
            ``(5) Sexually reproduced.--The term `sexually reproduced' 
        includes any production of a variety by seed.
            ``(6) United states.--The terms `United States' and `this 
        country' mean the United States, territories and possessions of 
        the United States, and the Commonwealth of Puerto Rico.
            ``(7) Variety.--The term `variety' means a plant grouping 
        within a single botanical taxon of the lowest known rank, that, 
        without regard to whether the conditions for plant variety 
        protection are fully met, can be defined by the expression of 
        the characteristics resulting from a given genotype or 
        combination of genotypes, distinguished from any other plant 
        grouping by the expression of at least one characteristic and 
        considered as a unit with regard to the suitability of the 
        plant grouping for being propagated unchanged. A variety may be 
        represented by seed, transplants, plants, and other matter.
    ``(b) Rules of Construction.--For the purposes of this Act:
            ``(1) Sale or disposition for nonreproductive purposes.--
        The sale or disposition, for other than reproductive purposes, 
        of harvested material produced as a result of experimentation 
        or testing of a variety to ascertain the characteristics of the 
        variety, or as a by-product of increasing a variety, shall not 
        be considered to be a sale or disposition for purposes of 
        exploitation of the variety.
            ``(2) Sale or disposition for reproductive purposes.--The 
        sale or disposition of a variety for reproductive purposes 
        shall not be considered to be a sale or disposition for the 
        purposes of exploitation of the variety if the sale or 
        disposition is done as an integral part of a program of 
        experimentation or testing to ascertain the characteristics of 
        the variety, or to increase the variety on behalf of the 
        breeder or the successor in interest of the breeder.
            ``(3) Sale or disposition of hybrid seed.--The sale or 
        disposition of hybrid seed shall be considered to be a sale or 
        disposition of harvested material of the varieties from which 
        the seed was produced.
            ``(4) Application for protection or entering into a 
        register of varieties.--The filing of an application for the 
        protection or for the entering of a variety in an official 
        register of varieties, in any country, shall be considered to 
        render the variety a matter of common knowledge from the date 
        of the application, if the application leads to the granting of 
        protection or to the entering of the variety in the official 
        register of varieties, as the case may be.
            ``(5) Distinctness.--The distinctness of one variety from 
        another may be based on one or more identifiable morphological, 
        physiological, or other characteristics (including any 
        characteristics evidenced by processing or product 
        characteristics, such as milling and baking characteristics in 
        the case of wheat) with respect to which a difference in 
        genealogy may contribute evidence.
            ``(6) Publicly known varieties.--
                    ``(A) In general.--A variety that is adequately 
                described by a publication reasonably considered to be 
                a part of the public technical knowledge in the United 
                States shall be considered to be publicly known and a 
                matter of common knowledge.
                    ``(B) Description.--A description that meets the 
                requirements of subparagraph (A) shall include a 
                disclosure of the principal characteristics by which a 
                variety is distinguished.
                    ``(C) Other means.--A variety may become publicly 
                known and a matter of common knowledge by other 
                means.''.

SEC. 3. RIGHT TO PLANT VARIETY PROTECTION; PLANT VARIETIES PROTECTABLE.

    Section 42 (7 U.S.C. 2402) is amended to read as follows:

``SEC. 42. RIGHT TO PLANT VARIETY PROTECTION; PLANT VARIETIES 
              PROTECTABLE.

    ``(a) In General.--The breeder of any sexually reproduced plant 
variety (other than fungi or bacteria) who has so reproduced the 
variety, or the successor in interest of the breeder, shall be entitled 
to plant variety protection for the variety, subject to the conditions 
and requirements of this Act, if the variety is--
            ``(1) new, in the sense that, on the date of filing of the 
        application for plant variety protection, propagating or 
        harvested material of the variety has not been sold or 
        otherwise disposed of to other persons, by or with the consent 
        of the breeder, or the successor in interest of the breeder, 
        for purposes of exploitation of the variety--
                    ``(A) in the United States, more than 1 year prior 
                to the date of filing; or
                    ``(B) in any area outside of the United States--
                            ``(i) more than 4 years prior to the date 
                        of filing; or
                            ``(ii) in the case of a tree or vine, more 
                        than 6 years prior to the date of filing;
            ``(2) distinct, in the sense that the variety is clearly 
        distinguishable from any other variety the existence of which 
        is publicly known or a matter of common knowledge at the time 
        of the filing of the application;
            ``(3) uniform, in the sense that any variations are 
        describable, predictable, and commercially acceptable; and
            ``(4) stable, in the sense that the variety, when sexually 
        reproduced, will remain unchanged with regard to the essential 
        and distinctive characteristics of the variety with a 
        reasonable degree of reliability commensurate with that of 
        varieties of the same category in which the same breeding 
        method is employed.
    ``(b) Multiple Applicants.--
            ``(1) In general.--If 2 or more applicants submit 
        applications on the same effective filing date for varieties 
        that cannot be clearly distinguished from one another, but that 
        fulfill all other requirements of subsection (a), the applicant 
        who first complies with all requirements of this Act shall be 
        entitled to a certificate of plant variety protection, to the 
        exclusion of any other applicant.
            ``(2) Requirements completed on same date.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), if 2 or more applicants comply with 
                all requirements for protection on the same date, a 
                certificate shall be issued for each variety.
                    ``(B) Varieties indistinguishable.--If the 
                varieties that are the subject of the applications 
                cannot be distinguished in any manner, a single 
                certificate shall be issued jointly to the 
                applicants.''.

SEC. 4. APPLICATIONS.

    Section 52 (7 U.S.C. 2422) is amended--
            (1) in paragraph (1), by adding at the end the following 
        new sentence: ``The variety shall be named in accordance with 
        regulations issued by the Secretary.'';
            (2) in the first sentence of paragraph (2), by striking 
        ``novelty'' and inserting ``distinctiveness, uniformity, and 
        stability'';
            (3) by redesignating paragraphs (3) and (4) as paragraphs 
        (4) and (5), respectively; and
            (4) by inserting after paragraph (2) the following new 
        paragraph:
            ``(3) A statement of the basis of the claim of the 
        applicant that the variety is new.''.

SEC. 5. BENEFIT OF EARLIER FILING DATE.

    Section 55(a) (7 U.S.C. 2425(a)) is amended--
            (1) by redesignating the first and second sentences as 
        paragraphs (1) and (2), respectively;
            (2) in paragraph (1) (as so designated), by inserting 
        before the period at the end the following: ``, not including 
        the date on which the application is filed in the foreign 
        country''; and
            (3) by adding at the end the following new paragraph:
    ``(3)(A) An applicant entitled to a right of priority under this 
subsection shall be allowed to furnish any necessary information, 
document, or material required for the purpose of the examination of 
the application during--
            ``(i) the 2-year period beginning on the date of the 
        expiration of the period of priority ; or
            ``(ii) if the first application is rejected or withdrawn, 
        an appropriate period after the rejection or withdrawal, to be 
        determined by the Secretary.
    ``(B) An event occurring within the period of priority (such as the 
filing of another application or use of the variety that is the subject 
of the first application) shall not constitute a ground for rejecting 
the application or give rise to any third party right.''.

SEC. 6. CONTENTS AND TERM OF PLANT VARIETY PROTECTION.

    Section 83 (7 U.S.C. 2483) is amended--
            (1) in the second sentence of subsection (a), by striking 
        ``by variety name'';
            (2) in the first sentence of subsection (b)--
                    (A) by striking ``eighteen'' and inserting ``20''; 
                and
                    (B) by inserting before the period at the end the 
                following: ``, except that, in the case of a tree or 
                vine, the term of the plant variety protection shall 
                expire 25 years from the date of issue of the 
                certificate''; and
            (3) in subsection (c), by striking ``repository: Provided, 
        however, That'' and inserting ``repository, or requiring the 
        submission of a different name for the variety, except that''.

SEC. 7. PRIORITY CONTEST.

    (a) Priority Contest; Effect of Adverse Final Judgment or 
Inaction.--Sections 92 and 93 (7 U.S.C. 2502 and 2503) are repealed.
    (b) Interfering Plant; Variety Protection.--
            (1) Redesignation.--Chapter 9 of title II (7 U.S.C. 2501 et 
        seq.) is amended by redesignating section 94 (7 U.S.C. 2504) as 
        section 92.
            (2) Amendments.--Section 92 (as so redesignated) is 
        amended--
                    (A) by striking ``The owner'' and inserting ``(a) 
                The owner''; and
                    (B) by striking the second sentence.
    (c) Appeal or Civil Action in Contested Cases.--
            (1) Transfer.--Section 73 (7 U.S.C. 2463) is amended by 
        transferring subsection (b) to the end of section 92 (as 
        redesignated by subsection (b)(1)).
            (2) Repeal.--Section 73 (as amended by paragraph (1)) is 
        repealed.
    (d) Conforming Amendment.--Section 71 (7 U.S.C. 2461) is amended by 
striking ``92,''.

SEC. 8. INFRINGEMENT OF PLANT VARIETY PROTECTION.

    Section 111 (7 U.S.C. 2541) is amended--
            (1) in subsection (a)--
                    (A) by striking ``novel'' the first two places it 
                appears and inserting ``protected'';
                    (B) in paragraph (1), by striking ``the novel'' and 
                inserting ``or market the protected'';
                    (C) by striking ``novel'' each place it appears in 
                paragraphs (2) through (7);
                    (D) by striking ``or'' each place it appears at the 
                end of paragraphs (3) through (6);
                    (E) by redesignating paragraphs (7) and (8) as 
                paragraphs (9) and (10), respectively; and
                    (F) by inserting after paragraph (6) the following 
                new paragraphs:
            ``(7) condition the variety for the purpose of propagation;
            ``(8) stock the variety for any of the purposes referred to 
        in paragraphs (1) through (7);'';
            (2) by redesignating subsection (b) as subsection (f); and
            (3) by inserting after subsection (a) the following new 
        subsections:
    ``(b) The owner of a protected variety may authorize the use of the 
variety under this section subject to conditions and limitations 
specified by the owner.
    ``(c) This section shall apply equally to--
            ``(1) any variety that is essentially derived from a 
        protected variety, unless the protected variety is an 
        essentially derived variety;
            ``(2) any variety that is not clearly distinguishable from 
        a protected variety;
            ``(3) any variety whose production requires the repeated 
        use of a protected variety; and
            ``(4) harvested material (including entire plants and parts 
        of plants) obtained through the unauthorized use of propagating 
        material of a protected variety, unless the owner of the 
        variety has had a reasonable opportunity to exercise the rights 
        provided by this Act with respect to the propagating material.
    ``(d) It shall not be an infringement of the rights of the owner of 
a variety to perform any act concerning propagating material of any 
kind, or harvested material, including entire plants and parts of 
plants, of a protected variety that has been sold or otherwise marketed 
with the consent of the owner in the United States, unless the act 
involves further propagation of the variety or involves an export of 
material of the variety, that enables the propagation of the variety, 
into a country that does not protect varieties of the plant genus or 
species to which the variety belongs, unless the exported material is 
for final consumption purposes.
    ``(e) It shall not be an infringement of the rights of the owner of 
a variety to perform any act done privately and for noncommercial 
purposes.''.

SEC. 9. RIGHT TO SAVE SEED; CROP EXEMPTION.

    The first sentence of section 113 (7 U.S.C. 2543) is amended by 
striking ``section: Provided, That'' and all that follows through the 
period and inserting ``section.''.

SEC. 10. LIMITATION OF DAMAGES; MARKING AND NOTICE.

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

SEC. 11. OBLIGATION TO USE VARIETY NAME.

    Section 128(a) (7 U.S.C. 2568(a)) is amended by adding at the end 
the following new paragraph:
            ``(4) Failure to use the name of a variety for which a 
        certificate of protection has been issued under this Act, even 
        after the expiration of the certificate.''.

SEC. 12. TRANSITIONAL PROVISIONS.

    (a) In General.--Except as provided in subsection (b), any variety 
for which a certificate of plant variety protection has been issued 
prior to the effective date of this Act, and any variety for which an 
application is pending on the effective date of this Act, shall 
continue to be governed by the Plant Variety Protection Act (7 U.S.C. 
2321 et seq.), as in effect on the day before the effective date of 
this Act.
    (b) Applications Withdrawn and Refiled.--If a pending application 
is withdrawn and refiled after the effective date of this Act, 
eligibility for protection and the terms of protection shall be 
governed by the Plant Variety Protection Act, as amended by this Act.

SEC. 13. EFFECTIVE DATE.

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

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