[Congressional Record Volume 140, Number 67 (Wednesday, May 25, 1994)]
[Senate]
[Page S]
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[Congressional Record: May 25, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
            PLANT VARIETY PROTECTION ACT AMENDMENTS OF 1994

                                 ______


                        KERRY AMENDMENT NO. 1746

  Mr. MITCHELL (for Mr. Kerrey) proposed an amendment to the bill (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.

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE; REFERENCES.

       (a) Short Title.--This Act may be cited as the ``Plant 
     Variety Protection Act Amendments of 1994''.
       (b) References to Plant Variety Protection Act.--Except as 
     otherwise expressly provided, whenever in this Act an 
     amendment or repeal is expressed in terms of an amendment to, 
     or repeal of, a section or other provision, the reference 
     shall be considered to be made to a section or other 
     provision of the Plant Variety Protection Act (7 U.S.C. 2321 
     et seq.).

     SEC. 2. DEFINITIONS AND RULES OF CONSTRUCTION.

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

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

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

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

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

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

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

     SEC. 4. APPLICATIONS.

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

     SEC. 5. BENEFIT OF EARLIER FILING DATE.

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

     SEC. 6. NOTICE OF REFUSAL; RECONSIDERATION.

       The first sentence of section 62(b) (7 U.S.C. 2442(b)) is 
     amended--
       (1) by striking ``six months'' and inserting ``at least 30 
     days, and not more than 180 days''; and
       (2) by striking ``in exceptional circumstances''.

     SEC. 7. CONTENTS AND TERM OF PLANT VARIETY PROTECTION.

       Section 83 (7 U.S.C. 2483) is amended--
       (1) in subsection (a)--
       (A) by designating the first through fourth sentences as 
     paragraphs (1) through (4), respectively; and
       (B) by striking paragraphs (2) and (3) (as so designated) 
     and inserting the following new paragraphs:
       ``(2) If the owner so elects, the certificate shall--
       ``(A) specify that seed of the variety shall be sold in the 
     United States only as a class of certified seed; and
       ``(B) if so specified, conform to the number of generations 
     designated by the owner.
       ``(3) An owner may waive a right provided under this 
     subsection, other than a right that is elected by the owner 
     under paragraph (2)(A).'';
       (2) in the first sentence of subsection (b)--
       (A) by striking ``eighteen'' and inserting ``20''; and
       (B) by inserting before the period at the end the 
     following: ``, except that, in the case of a tree or vine, 
     the term of the plant variety protection shall expire 25 
     years from the date of issue of the certificate''; and
       (3) in subsection (c), by striking ``repository: Provided, 
     however, That'' and inserting ``repository, or requiring the 
     submission of a different name for the variety, except 
     that''.

     SEC. 8. PRIORITY CONTEST.

       (a) Priority Contest; Effect of Adverse Final Judgment or 
     Inaction.--Sections 92 and 93 (7 U.S.C. 2502 and 2503) are 
     repealed.
       (b) Interfering Plant Variety Protection.--
       (1) Redesignation.--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 Amendments.--
       (1) Section 71 (7 U.S.C. 2461) is amended by striking 
     ``92,''.
       (2) Section 102 (7 U.S.C. 2532) is amended by inserting 
     ``or tuber propagable'' after ``sexually reproducible'' each 
     place it appears.

     SEC. 9. PROMPT PAYMENT.

       Chapter 9 of title II (7 U.S.C. 2501 et seq.) (as amended 
     by section 8) is further amended by adding at the end the 
     following new section:

     ``SEC. 93. PROMPT PAYMENT.

       ``If a seed grower contracts with the holder of a 
     certificate of plant variety protection issued under this 
     Act, or a licensee of the holder, to produce lawn, turf, or 
     forage grass seed, alfalfa, or clover seed, protected under 
     this Act, payments due the grower under the contract shall be 
     completed not later than the earlier of--
       ``(1) 30 days after the contract payment date; or
       ``(2) May 1 of the year following the production of the 
     seed.''.

     SEC. 10. INFRINGEMENT OF PLANT VARIETY PROTECTION.

       Section 111 (7 U.S.C. 2541) is amended--
       (1) in subsection (a)--
       (A) by striking ``novel'' the first two places it appears 
     and inserting ``protected'';
       (B) in paragraph (1), by striking ``the novel'' and 
     inserting ``or market the protected'';
       (C) by striking ``novel'' each place it appears in 
     paragraphs (2) through (7);
       (D) in paragraph (3), by inserting ``, or propagate by a 
     tuber or a part of a tuber,'' after ``sexually multiply'';
       (E) by striking ``or'' each place it appears at the end of 
     paragraphs (3) through (6);
       (F) by redesignating paragraphs (7) and (8) as paragraphs 
     (9) and (10), respectively; and
       (G) by inserting after paragraph (6) the following new 
     paragraphs:
       ``(7) condition the variety for the purpose of propagation, 
     except to the extent that the conditioning is related to the 
     activities permitted under section 113;
       ``(8) stock the variety for any of the purposes referred to 
     in paragraphs (1) through (7);'';
       (2) by redesignating subsection (b) as subsection (f); and
       (3) by inserting after subsection (a) the following new 
     subsections:
       ``(b) 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. 11. 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. 12. LIMITATION OF DAMAGES; MARKING AND NOTICE.

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

     SEC. 13. OBLIGATION TO USE VARIETY NAME.

       Section 128(a) (7 U.S.C. 2568(a)) is amended--
       (1) by inserting ``or tubers or parts of tubers'' after 
     ``plant material''; and
       (2) by adding at the end the following new paragraph:
       ``(4) Failure to use the name of a variety for which a 
     certificate of protection has been issued under this Act, 
     even after the expiration of the certificate, except that 
     lawn, turf, or forage grass seed, alfalfa, or clover seed may 
     be sold without a variety name unless use of the name of a 
     variety for which a certificate of protection has been issued 
     under this Act is required under State law.''.

     SEC. 14. ELIMINATION OF GENDER-BASED REFERENCES.

       (a) The last sentence of section 7(a) (7 U.S.C. 2327(a)) is 
     amended by striking ``his designee shall act as chairman'' 
     and inserting ``the designee of the Secretary shall act as 
     chairperson''.
       (b) Section 10(a) (7 U.S.C. 2330(a)) is amended by striking 
     ``he'' and inserting ``the Secretary''.
       (c) Section 23 (7 U.S.C. 2353) is amended--
       (1) in the second sentence, by striking ``he'' and 
     inserting ``the officer''; and
       (3) in the third sentence, by striking ``he'' and inserting 
     ``the person''.
       (d) Section 24 (7 U.S.C. 2354) is amended--
       (1) in the first sentence of subsection (a), by striking 
     ``him'' and inserting ``the witness''; and
       (2) in the second sentence of subsection (c)--
       (A) by striking ``his fees and traveling expenses'' and 
     inserting ``the fees and traveling expenses of the witness''; 
     and
       (B) by striking ``him'' and inserting ``the witness''.
       (e) The last sentence of section 27 (7 U.S.C. 2357) is 
     amended by striking ``he'' each place it appears '' and 
     inserting ``the person''.
       (f) The first sentence of section 44 (7 U.S.C. 2404) is 
     amended by striking ``he'' and inserting ``the Secretary''.
       (g) Section 53 (7 U.S.C. 2423) is amended--
       (1) in subsection (a), by striking ``one (or his 
     successor)'' and inserting ``one person (or the successor of 
     the person)''; and
       (2) in subsection (b), by striking ``he'' and inserting 
     ``the Secretary''.
       (h) Section 54 (7 U.S.C. 2424) is amended by striking ``his 
     successor in interest'' and inserting ``the successor in 
     interest of the breeder''.
       (i) Section 55 (7 U.S.C. 2425) is amended--
       (1) in subsection (a)(2) (as redesignated by section 5(1)), 
     by striking ``his application'' and inserting ``the 
     application filed in the United States''; and
       (2) in subsection (b), by striking ``his predecessor in 
     title'' and inserting ``the predecessor in title of the 
     person''.
       (j) The first sentence of section 62(b) (7 U.S.C. 2442(b)) 
     is amended--
       (1) by striking ``him'' and inserting ``an applicant'';
       (2) by striking ``an applicant shall'' and inserting ``the 
     applicant shall''; and
       (3) by striking ``he'' and inserting ``the Secretary''.
       (k) The second sentence of section 72 (7 U.S.C. 2462) is 
     amended by striking ``his variety as specified in his 
     application'' and inserting ``the variety as specified in the 
     application''.
       (l) Section 82 (7 U.S.C. 2482) is amended by striking ``his 
     signature'' and inserting ``the signature of the Secretary''.
       (m) Section 83 (7 U.S.C. 2483) is amended--
       (1) in subsection (a) (as amended by section 7(1)(A))--
       (A) in paragraph (1), by striking ``(or his successor in 
     interest)'' and inserting ``(or the successor in interest of 
     the breeder)''; and
       (B) in paragraph (4), by striking ``his discretion'' and 
     inserting ``the discretion of the Secretary''; and
       (2) in subsection (c), by striking ``he'' and inserting 
     ``the last owner''.
       (n) Section 86 (7 U.S.C. 2486) is amended--
       (1) in the first sentence, by striking ``him'' and 
     inserting ``the Secretary''; and
       (2) in the third sentence, by striking ``he'' and inserting 
     ``the person''.
       (o) Section 91(c) (7 U.S.C. 2501(c)) is amended by striking 
     ``he'' and inserting ``the Secretary''.
       (p) The fourth sentence of section 92(b) (as transferred by 
     section 8(c)(1)) is amended by striking ``he'' and inserting 
     ``the Secretary''.
       (q) The first sentence of section 111(f) (as redesignated 
     by section 9(2)) is amended by striking ``his official 
     capacity'' and inserting ``the official capacity of the 
     officer or employee''.
       (r) Section 112 (7 U.S.C. 2542) is amended by striking 
     ``his successor in interest'' and inserting ``the successor 
     in interest of the person''.
       (s) Section 113 (7 U.S.C. 2543) is amended--
       (1) in the first sentence--
       (A) by striking ``him'' and inserting ``the person''; and
       (B) by striking ``his farm'' and inserting ``the farm of 
     the person''; and
       (2) in the third sentence, by striking ``his actions'' and 
     inserting ``the actions of the purchaser''.
       (t) Section 121 (7 U.S.C. 2561) is amended by striking 
     ``his''.
       (u) Section 126(b) (7 U.S.C. 2566(b)) is amended by 
     striking ``his'' and inserting ``the''.
       (v) Section 128(a) (7 U.S.C. 2568(a)) is amended by 
     striking ``he'' and inserting ``the Secretary''.
       (w) Section 130(a) (7 U.S.C. 2570(a)) is amended by 
     striking ``his official capacity'' and inserting ``the 
     official capacity of the officer or employee''.

     SEC. 15. TRANSITIONAL PROVISIONS.

       (a) In General.--Except as provided in this section, any 
     variety for which a certificate of plant variety protection 
     has been issued prior to the effective date of this Act, and 
     any variety for which an application is pending on the 
     effective date of this Act, shall continue to be governed by 
     the Plant Variety Protection Act (7 U.S.C. 2321 et seq.), as 
     in effect on the day before the effective date of this Act.
       (b) Applications Refiled.--
       (1) In general.--An applicant may refile a pending 
     application on or after the effective date of this Act.
       (2) Effect of refiling.--If a pending application is 
     refiled on or after the effective date of this Act--
       (A) eligibility for protection and the terms of protection 
     shall be governed by the Plant Variety Protection Act, as 
     amended by this Act; and
       (B) for purposes of section 42 of the Plant Variety 
     Protection Act, as amended by section 3 of this Act, the date 
     of filing shall be the date of filing of the original 
     application.
       (c) Labeling.--
       (1) In general.--To obtain the protection provided to an 
     owner of a protected variety under the Plant Variety 
     Protection Act (7 U.S.C. 2321 et seq.) (as amended by this 
     Act), a notice given by an owner concerning the variety under 
     section 127 of the Plant Variety Protection Act (7 U.S.C. 
     2567) shall state that the variety is protected under such 
     Act (as amended by this Act).
       (2) Sanctions.--Any person that makes a false or misleading 
     statement or claim, or uses a false or misleading label, 
     concerning protection described in paragraph (1) shall be 
     subject to the sanctions described in section 128 of the 
     Plant Variety Protection Act (7 U.S.C. 2568).

     SEC. 16. EFFECTIVE DATE.

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

                          ____________________