[Congressional Record Volume 140, Number 84 (Tuesday, June 28, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: June 28, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
            PLANT VARIETY PROTECTION ACT AMENDMENTS OF 1994

 Mr. KERREY. Mr. President, on May 25, the Senate discharged 
the Committee on Agriculture, Nutrition, and Forestry from further 
consideration of S. 1409, the Plant Variety Protection Act Amendments 
of 1994, and subsequently adopted an amendment in the nature of a 
substitute and approved the bill, as amended, by unanimous consent.
  Because the bill was discharged from committee, no committee report 
was filed on the legislation. However, given the complex and technical 
nature of the bill, a section-by-section analysis, including related 
legislative history, was prepared to provide additional background and 
insight regarding the various amendments to the Plant Variety 
Protection Act that are incorporated in S. 1409.
  Unfortuately, Mr. President, the section-by-section analysis was 
inadvertently not printed in the Record of May 25 following approval of 
S. 1409.
  Therefore, as the primary sponsor of S. 1409, I ask the section-by-
section analysis of S. 1409 be included in today's Record, so that the 
legislative history of this important legislation is properly 
established.
  There being no objection, the analysis was ordered to be printed in 
the Record, as follows:

    Section-by-Section Analysis of the Plant Variety Protection Act 
                           Amendments of 1993

       Section 1. Provides that the Act may be cited as the 
     ``Plant Variety Protection Act Amendments of 1993''.
       Section 2. Replaces section 41 of the Plant Variety 
     Protection Act (hereafter referred to as the ``PVPA'') by 
     reordering, revising, adding and deleting definitions 
     [(subsection (a)] and rules of construction [subsection (b)], 
     as follows:
       Section 41(a)(1) is current section 41(g).
       Section 41(a)(2) revises the definition of the term 
     ``breeder'' in order to conform to Article 1(iv) of the 
     International Convention for the Protection of New Varieties 
     of Plants (UPOV), March 19, 1991, by removing the statement 
     that the terms ``breed'', ``develop'', ``originate'', and 
     ``discover'' each include the other and instead specifying 
     that the breeder is the person who directs the final breeding 
     or who both discovers and develops the variety. Also, it 
     clarifies that a person who rediscovers a publicly known 
     variety is not the breeder of that variety.
       Section 41(a)(3) defines a new term, ``essentially derived 
     variety'', to comply with article 14(5) of the 1991 UPOV 
     Convention. A variety that is essentially derived from 
     another variety may be protected (if otherwise eligible), but 
     if it is derived from a protected variety, the infringement 
     provisions of section 111 of the PVPA may apply [see section 
     9(3) of these amendments]. Under current law, an existing 
     variety may be used in development of a new variety which may 
     differ only in minor and unimportant ways from the original 
     variety. The new variety may be freely exploited by its 
     developer without obligation to the original breeder. An 
     illustrative list of the types of breeding procedures is 
     included in the definition. The essentially-derived 
     provisions do not modify the requirements for granting of a 
     PVPA certificate, but they do provide an opportunity for the 
     original breeder to seek compensation through agreement or 
     litigation. Guidelines on Essentially Derived Varieties have 
     been published by the Office of the Union [IOM/6/2, 30 Oct 
     1992, UPOV].
       Section 41(a)(4) is current section 41(c).
       Section 41(a)(5) defines tubers or parts of tubers as seed 
     for the purposes of this act.
       Section 41(a)(6) is current section 41(f).
       Section 41(a)(7) defines tuber-propagated to include any 
     production by a tuber or a part of a tuber.
       Section 41(a)(8) is current section 41(b) with minor 
     revisions to adapt the definition of ``United States'' and 
     ``this country'' to current U.S. standards.
       Section 41(a)(9) adds a definition of ``variety'' and 
     removes the definition of ``novel variety.'' The PVPA did not 
     define the term ``variety,'' although the meaning was 
     implicit in the definition of ``novel variety.'' The elements 
     of a novel variety (distinctness, uniformity, and stability) 
     are modified and placed in section 42. Part of the provision 
     relating to distinctness is placed in a rule of construction, 
     discussed below. This places the substantive requirements for 
     protection in one section and avoids confusion which may 
     result from the use of the term ``novel variety.'' The PVPA 
     used ``novel variety'' to refer primarily to a variety which 
     is distinct, while the 1991 UPOV Convention uses ``novelty'' 
     to refer to a variety which is new.
       The definition of the term ``date of determination'' 
     [current section 41(d)] is removed, because the term would no 
     longer be used elsewhere in the PVPA (section 3 of this Act 
     amends section 42 of the PVPA to base eligibility for 
     protection on the date of filing for protection rather than 
     the date of determination of a variety). The 1991 UPOV 
     Convention requires that protection be based on the date of 
     filing and not the date of determination.
       Tubers and tissue culture plantlets are added to the list 
     of forms that may represent a variety. These forms are most 
     commonly associated with tuber-propagated varieties.
       The inclusion of ``tuber propagation'' in the definitions 
     makes asexually-reproduced, tuber-propagated varieties 
     equivalent to sexually-reproduced, seed-propagated varieties. 
     Plant breeders' rights for asexually-reproduced varieties are 
     usually obtained under the Plant Patent Act; however, tuber-
     propagated varieties, such as potatoes and Jerusalem 
     artichokes, are excluded. This section is intended to give 
     plant breeders' rights to the developers of those tuber-
     propagated varieties which are excluded from the Plant Patent 
     Act.
       Section 41(b) contains the Rules of Construction. Current 
     subsection (h) defines the term ``testing.'' The definition 
     is replaced by a rule of construction, discussed below. 
     Current subsections (i) and (j) define the term ``public 
     variety'' and provide a rule of construction concerning that 
     term. The term ``public variety'' will no longer be used in 
     the PVPA but, as discussed below, the vast majority of the 
     varieties which, without these amendments, are excluded from 
     protection because they have been public varieties for more 
     than one year, will continue to be excluded from protection.
       New sections 41(b)(1) and (2) add rules of construction 
     which replace the definition of the term ``testing.'' New 
     section 41(b)(1) provides that the disposition for purposes 
     other than propagation of harvested material produced as a 
     result of experimentation or testing to ascertain the 
     characteristics of a variety will not be considered a 
     disposition for the purposes of exploitation of the variety, 
     which would otherwise begin a time period bar to protection 
     under section 42 of the PVPA as amended. New section 41(b)(2) 
     provides that the sale or other disposition of a variety for 
     reproductive purposes shall not be considered to be for the 
     purposes of exploitation of the variety if done as an 
     integral part of a testing program or to increase the variety 
     on behalf of the breeder. These clarifying provisions reflect 
     the longstanding interpretation of the PVPA.
       New section 41(b)(3) adds a rule of construction which 
     provides that the sale of hybird seed shall be considered a 
     sale of harvested material of the varieties from which it was 
     produced. Whether the sale was for the purposes of 
     exploitation of those varieties depends upon the 
     circumstances of the sale. Prior to these amendments, a 
     similar result was obtained under section 42 of the PVPA, 
     which made the use of a variety an event which began a one-
     year period after which protection for the variety is to be 
     barred.
       New section 41(b)(4) provides that the filing of an 
     application for protection or for the entering of another 
     variety in an official register of varieties, in any country, 
     shall be considered to render that other variety a matter of 
     common knowledge from the date of the application, 
     provided that the application leads to the granting of 
     protection or to the entering of the said other variety in 
     the official register of varieties, as the case may be. 
     This rule of construction is necessary to conform to 
     Article 7 of the 1991 UPOV Convention.
       New section 41(b)(5) is derived from the distinctness 
     portion of the deleted definition of ``novel variety' and 
     clarifies the broad range of characteristics which may be the 
     basis of distinctiveness.
       New section 41(b)(6) provides a rule of construction 
     clarifying that a variety which is adequately described by a 
     publication, which includes a disclosure of the principal 
     characteristics by which the variety is distinguished, will 
     be considered to be publicly known and a matter of common 
     knowledge, and that a variety may become publicly known or a 
     matter of common knowledge by other means. This provision is 
     derived from current subsections 41 (i) and (j) and related 
     portions of section 42(a)(1).
       Section 3. Amends section 42 of the PVPA, ``Right to Plant 
     Variety Protection; Plant Varieties Protectable''. The 
     amended section sets forth the substantive requirements for 
     plant variety protection, which are changed in several 
     significant ways.
       The exclusion of protection for first generation hybrids is 
     removed. This is necessary to conform to Articles 1(vi), 5 
     and 9 of the 1991 UPOV Convention.
       Also, the amendment places together the substantive 
     requirements for protection: that the variety be new, 
     distinct, uniform and stable. Currently, section 42 of the 
     PVPA incorporates the elements of distinctness, uniformity 
     and stability from the definition of ``novel variety'', and 
     separately states the bars to protection. Because all of the 
     requirements are set forth together, the bars to protection 
     are integrated and, therefore, no longer need to be 
     separately stated.
       The first requirement that a variety has to meet in order 
     to be protected is that it be ``new'' [section 42(a)(1)]. 
     This concept incorporates most of the first part of the 
     current ``public variety'' bar which precludes protection 
     when a variety has been sold or used in this country for more 
     than one year. It modifies the bar in that sale or use 
     without the consent of the breeder (or successor in interest) 
     is no longer a bar. Also, the secret commercial use of a 
     variety will not present a bar to protection of a variety 
     which cannot be clearly distinguished from the secret 
     variety. This is because the requirement that a variety be 
     ``new'' applies only to the variety for which protection is 
     sought, and not to any other variety, including those which 
     cannot be clearly distinguished from it.
       The second requirement, that a variety be ``distinct'' 
     [Section 42(a)(2)], makes two significant changes in the 
     PVPA. First, the date at which the variety must be distinct 
     is changed to the date of filing, rather than the date of 
     determination. Second, it eliminates a portion of the second 
     part of the ``public variety'' bar which denies protection if 
     the variety has been both publicly known and existing in this 
     country for more than one year prior to the application. 
     Thus, the breeder is able to publish the characteristics of 
     the variety or to place it in varietal trials without 
     beginning a time bar to protection.
       The requirements for uniformity and stability are not 
     changed substantively, but are moved from the definition of 
     ``novel variety'' to sections 42(a) (3) and (4), 
     respectively.
       The amendment removes the bar in current section 42(a)(2) 
     for filing an application in another country more than one 
     year before the effective filing date here. This provision is 
     necessary to conform to Article 5(2) of the 1991 UPOV 
     Convention. It should be noted that the Secretary has issued 
     regulations under current section 42(b) of the PVPA which 
     have the effect of extending the one-year periods in section 
     42(a) to four years (six years for trees and vines) from the 
     time the variety was marketed in another country [7 CFR 
     180.7(a)(7) (1992)]. The regulation was necessary to conform 
     to the 1978 UPOV Convention.
       The amendment also removes the bar in current section 
     42(a)(3), that another person is entitled to an earlier date 
     of determination. As discussed above, eligibility for 
     protection will based on the date of filing rather than the 
     date of determination.
       The amendment also adds a provision [new section 42(b)] to 
     determine eligibility for protection when applicants have the 
     same effective filing date for varieties which cannot be 
     clearly distinguished from one another.
       Current section 42(b), which allows the Secretary to extend 
     certain time limits and to commensurately reduce the term of 
     protection, is deleted. This ensures conformity to Articles 
     5, 6, 7 and 19 of the 1991 UPOV Convention.
       Section 4. Amends section 52 of the PVPA, ``Content of 
     Application''.
       Section 4(1) adds a sentence at the end of section 52(1) of 
     the PVPA specifying that the variety must be named in 
     accordance with regulations issued by the Secretary. This 
     provision is intended to ensure conformity with Article 20 of 
     the 1991 UPOV convention. Regulations issued by the Secretary 
     will permit only variety names that comply with the 
     provisions of the 1991 UPOV Convention or any other treaty or 
     statute which may apply. In particular, the regulations will 
     only permit denominations that are not liable to mislead or 
     cause confusion concerning the characteristics, value or 
     identity of the variety or the identity of the breeder. In 
     addition, the regulations will only permit a variety name 
     that is different from that of another variety of the same 
     species or of a closely related species, either in this 
     country or in any member of UPOV. (Other aspects of Article 
     20 are addressed elsewhere; provisions for requiring a change 
     in the variety name are in section 6 and provisions for 
     requiring the use of the variety name are in section 11.)
       Section 4(2) amends section 52(2) of the PVPA by replacing 
     the word ``novelty'' with the phrase ``distinctiveness, 
     uniformity and stability''. This change is not substantive 
     since distinctiveness, uniformity and stability are the 
     elements of a novel variety in the PVPA. The change avoids 
     confusion since the amendments will discontinue the use of 
     the term ``novel variety'' throughout the PVPA.
       Section 4(3) renumbers paragraphs (3) and (4).
       Section 4(4) adds a new section 52(3) requiring that the 
     application contain a statement of the basis of the 
     applicant's claim that the variety is new.
       Section 4(5) adds ``propagating material'' as a form of 
     deposit for the viable sample required in newly-designated 
     paragraph (4).
       Section 5. Amends section 55 of the PVPA. ``Benefit of 
     Earlier filing Date''.
       Section 5(1) divides subsection (a) into paragraphs (1) and 
     (2). This change is not substantive but is clarifying in view 
     of an addition discussed below.
       Section 5(2) adds the phrase ``not including the date on 
     which the application is filed in the foreign country'' to 
     ensure that the provision for a twelve-month period in which 
     an applicant may claim the priority of an earlier filing date 
     in another country will conform to the period contained in 
     Article 11(1) of the 1991 UPOV Convention.
       Section 5(3) adds a paragraph providing that an applicant 
     entitled to a right of priority shall be allowed a period of 
     two years after the expiration of the period of priority to 
     furnish any necessary information, document, or material 
     required for the purpose of the examination of the 
     application, or if the first application is rejected or 
     withdrawn, an appropriate period after such rejection or 
     withdrawal, to be determined by the Secretary, to provide the 
     information, document, or material. 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.
       This provision ensures conformity with Article 11(3) of the 
     1991 UPOV Convention, which is intended to ensure that 
     applicants are not unfairly denied the benefit of the earlier 
     date of application because of unreasonable time constraints. 
     For example, a breeder who files for protection in several 
     countries may not have enough seed of the variety to submit 
     the required sample to each country.
       Section 6. Revises the time limit on response to notices 
     from the PVPA office to the person submitting an application 
     for protection.
       Section 7. Amends section 83 of the PVPA, ``Contents and 
     Term of Plant Variety Protection''.
       Section 7(1) revises section 83(a) so that it continues to 
     allow an owner to elect that the variety shall be sold only 
     as a class of certified seed, but no longer allows an 
     election that the variety be sold by variety name only as a 
     class of certified seed. This change is necessary to conform 
     to Article 20(7) of the 1991 UPOV Convention, which requires 
     that protected varieties must be sold by variety name. Owners 
     may elect to waive their right to the number of generations 
     specified under the certified seed provisions to 
     compensate for unforeseen commercial seed production 
     problems or loss of a generation due to a natural 
     disaster.
       Section 7(2) revises section 83(b) to provide that the term 
     of plant variety protection shall expire 20 years after the 
     date of issue, except that the term shall expire 25 years 
     after the date of issue in the case of a tree or vine. This 
     extends the term of protection from the current 18 years, in 
     conformity with Article 19 of the 1991 UPOV Convention.
       Section 7(3) amends section 83(c) by adding the failure to 
     comply with regulations requiring the submission of a 
     different name for the variety as a condition which shall 
     cause a certificate of protection to expire. This provision 
     is necessary to ensure that varieties are named in conformity 
     with Article 20 of the 1991 UPOV Convention and to secure the 
     cooperation of owners in making any necessary changes in 
     variety names. It is in conformity with Article 22 of the 
     1991 UPOV Convention, pertaining to cancellation of the 
     breeder's right.
       Section 8. Amends the PVPA by removing the provisions which 
     relate exclusively to priority contests and by making 
     conforming changes in other sections. A priority contest is 
     an adversarial proceeding between competing applicants to 
     determine which has the earliest date of determination (i.e., 
     the date that it was determined that a variety had been 
     developed or discovered and sexually reproduced). Section 42 
     of the PVPA has been changed so that the date of filing for 
     protection, rather than the date of the determination of the 
     variety, determines priority when applications are received 
     for the same variety, or for varieties which cannot be 
     clearly distinguished from one another. Because the date of 
     filing is a matter of record, it is no longer necessary or 
     appropriate to provide for an adversarial proceeding.
       To conform to this section, section 102 is amended to 
     include tuber propagable material among the types of plant 
     material allowed to be released by the owner during testing.
       Section 9. Adds a section requiring prompt payment for 
     certain types of seed grown under contract. It is the intent 
     of the committee that the prompt payment provisions of the 
     Act serve to ensure payment under a contract for the 
     production of lawn, turf, forage grass seed, alfalfa, and 
     clover seed within 30 days of the date agreed upon by the 
     parties and expressed in the production contract or by May 1 
     of the year following the contracted year of production.
       Section 10. Revises section 111 of the PVPA, ``Infringement 
     of Plant Variety Protection''.
       Section 10(1)(A) changes the first reference to ``novel 
     variety'' to ``protected variety''.
       Section 10(1)(B) also adds marketing as an act which 
     requires the authority of the breeder. This clarifying change 
     assures conformity with Article 14(1)(iv) of the 1991 UPOV 
     Convention.
       Section 10(1)(C) deletes the word ``novel'' elsewhere in 
     section 111.
       Section 10(1)(D) includes tuber propagation as a step in 
     marketing.
       Section 10(1)(E) deletes ``or'' in paragraphs (3) through 
     (6).
       Section 10(1)(F) redesignates paragraphs to allow for the 
     insertion of new provisions.
       Section 10(1)(G) inserts two new provisions explaining 
     actions which constitute infringement: conditioning a variety 
     for the purposes of propagation (planting), and stocking a 
     variety for any of the purposes which constitute 
     infringement. These provisions are necessary to conform to 
     Article 14(1)(a) of the 1991 UPOV Convention. They will allow 
     the owner of a variety to take action at earlier stages and 
     thus minimize injury. The provision against conditioning a 
     variety for planting does not apply to the conditioning of 
     seed saved by farmers for replanting on their own holdings. 
     However, knowingly conditioning saved seed intended for sale 
     will be a violation of the act.
       Section 10(2) redesignates subsection (b) as subsection (f) 
     and adds new subsections (b) through (e).
       New subsection 111(b) provides that the owner of a 
     protected variety may make authorization to use the variety 
     subject to conditions and limitations. This is a clarifying 
     change which assures conformity with Article 14(1)(b) of the 
     1991 UPOV Convention.
       New subsection 111(c) provides that the infringement 
     provisions apply equally to any variety that is essentially 
     derived from a protected variety, unless the protected 
     variety is itself an essentially derived variety, to any 
     variety that is not clearly distinguishable from a protected 
     variety, to any variety whose production requires the 
     repeated use of the protected variety, and to 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. These 
     provisions are necessary to conform to Article 14(5) and (2) 
     of the 1991 UPOV Convention.
       New subsection 111(d) provides that it shall not be an 
     infringement to perform any act concerning harvested 
     material, including entire plants and parts of plants, of a 
     protected variety which has been sold or otherwise marketed 
     with the consent of the owner in the United States, unless 
     such act involves further propagation of the variety or 
     involves an export of material of the variety, which enables 
     the propagation of the variety, into a country which does not 
     protect varieties of the plant genus or species to which the 
     variety belongs, except where the exported material is for 
     final consumption. This provision ensures conformity to 
     Article 15 of the 1991 UPOV Convention and sets forth the 
     various rights provided by the PVPA.
       New subsection 111(e) provides that it shall not be an 
     infringement to perform any act done privately and for non-
     commercial purposes. This provision ensures conformity to 
     Article 15(1)(i) of the 1991 UPOV Convention.
       Section 11. Amends section 113 of the PVPA by deleting the 
     provision which allows a person, whose primary farming 
     occupation is the growing of crops for sale for other than 
     reproductive purposes, to sell ``saved seed'' to other such 
     persons, for reproductive purposes. The amendment does not 
     diminish the right of a farmer to save seed for replanting 
     and to use the resulting crop or to sell the seed for other 
     than reproductive purposes. Deletion of the provision 
     allowing certain sales of saved seed is necessary to conform 
     to Articles 14(1) and 15(2) of the 1991 UPOV Convention.
       It is not the intent of the committee that deletion of the 
     provision allowing the sale of saved seed be viewed as a step 
     toward the eventual end to the traditional right of farmers 
     to save seed for use on their own holdings. During the UPOV 
     negotiations, many representatives to the UPOV conference 
     asserted that farmers in their countries had a traditional 
     right to save seed for their own use and that removal of this 
     right would likely preclude some non-member countries, 
     currently considering joining, from doing so. The Federation 
     of Agricultural Producers, an international organization of 
     farmers, considered the revised UPOV, including the saved 
     seed provision (as reflected in the PVPA amendments), ``a 
     reasonable compromise balancing the interests of farmers, 
     consumers, and breeders so that society as a whole would 
     benefit from the exploitation of plant genetic resources.'' 
     [Paragraph 244.7, In: Records of the Diplomatic Conference 
     for the Revision of the UPOV, Geneva, 1991, pub. no. 346(E)]. 
     Retention of the farmers' exemption is an attempt to balance 
     the varying interests of U.S. companies and producers, as 
     well as to strengthen acceptance of plant breeders' rights 
     internationally.
       The PVPA exemption concerning a farmer's use of saved seed 
     should be interpreted in a practical manner. The exemption 
     should not be limited, for example, to the replanting of 
     saved seed on the same acre from which it was harvested. 
     Instead, the exemption should be interpreted broadly to allow 
     a farmer, for example, to plant the saved seed on any acreage 
     involved in the farmer's partnership, or corporate farming 
     operation, whether the land is rented or owned by the farming 
     operation. In another example, in the normal course of the 
     ginning of cotton, seed can become commingled, one farm's 
     with another's. This is a result of the manner in which seed 
     is removed from cotton and stored at the gin. The saved seed 
     exemption should not be interpreted so restrictively as to 
     place cotton farmers (or other farmers in similar situations) 
     in jeopardy of violating the PVPA because seed may become 
     commingled due to established agricultural practices.
       Modifications to Section 113 prevent farmers from selling 
     seed of protected varieties, for the purpose of propagation, 
     without permission of the certificate owner. The Committee 
     realizes that in some cases farmers may have incidental 
     amounts of treated seed or saved seed in order to use it 
     pursuant to section 113 and, due to prevented planting or 
     other unforeseen causes (such as a change in government 
     farm programs), may have excess seed. Under these 
     circumstances, the Committee encourages farmers to seek, 
     and certificate owners or their agents to grant, on a 
     case-by-case basis, permission for the sale of such 
     incidental amounts of seed. Certificate owners are 
     encouraged to establish and have in place clear policies 
     that allow such requests to be handled at the farmer/
     dealer level.
       In addition, although, for purposes of Sections 111 and 
     113, it shall remain within the sole prerogative of the owner 
     of a protected variety to give consent for the sale of such 
     variety, consent to sell saved seed should ordinarily not be 
     withheld from a farmer in circumstances irreparably affecting 
     the farmer's economic viability. For example, where the 
     farmer is unable to plant seed saved with the intent of 
     planting a particular crop because of serious illness or 
     disability, financial distress, or other unanticipated events 
     that unavoidably disrupt farming operations, or upon 
     disposition of all farm assets and inventory, consent to sell 
     such seed should generally be granted. Even under such dire 
     circumstances, however, consent may still be limited to the 
     sale of seed only to another farmer whose primary occupation 
     is the growing of crops for other than reproductive purposes, 
     and in an amount not to exceed that which was saved by the 
     first farmer for planting that year's crop on the first 
     farmer's holdings. Certificate owners are encouraged to 
     establish and have in place clear policies that allow 
     requests under such circumstances to be handled at the 
     farmer/dealer level.
       Section 12. Amends section 127 of the PVPA by deleting the 
     word ``novel''. It is unnecessary to refer to a variety as a 
     ``novel'' variety in this context and it could cause 
     confusion in view of the deletion of ``novel variety'' as a 
     defined term in section 41 of the PVPA. Section 128 of the 
     PVPA prohibits the use of the notices referred to in section 
     127 for varieties for which an application for protection has 
     not been filed or for which a certificate of protection has 
     not been granted, as the case may be.
       Section 13. Amends section 128 of the PVPA by including 
     ``tuber-propagating'' as a type of plant material covered and 
     adding a requirement that a protected variety be sold by 
     variety name, even after the expiration of protection. An 
     exemption for lawn, turf, forage grass, alfalfa and clover 
     seed from the requirement that protected seeds be sold by 
     variety name is provided. The committee intends this 
     provision to allow the current practice of marketing and 
     selling seeds as ``variety not stated'', with its existing 
     limitations, to continue within the specified seed groups. 
     The committee does not intend for this provision to preempt 
     state law or to confer new rights to those in existence prior 
     to the enactment of this statute.
       Because of continuing interest in developments affecting 
     the grass and alfalfa seed industries in the Northwest, the 
     Secretary is strongly encouraged to direct the Cooperative 
     State Research Service, in cooperation with Oregon State 
     University, to conduct a study of the general trends in and 
     characteristics of those industries, including a survey and 
     review of the effects and extent of different marketing 
     techniques, such as ``variety not stated'' marketing.
       The general requirement to use variety name is necessary to 
     conform to Article 20(7) of the 1991 UPOV Convention. The 
     requirement is placed in section 128 for efficiency in 
     enforcement.
       Section 14. Eliminates gender-specific language in the 
     PVPA.
       Section 15. Provides for the transition from the current 
     PVPA. Applications received before the effective date of 
     these amendments will be examined under current law, but an 
     applicant could reapply under the new provisions. The 
     original date of filing is retained for the purposes of 
     section 42(a)(1), as amended by this act. The scope of 
     protection provided by certificates issued under current law 
     will not be changed by these amendments.
       The labelling requirements in this section refer to the 
     existing sections 127 and 128 of the PVPA. To obtain 
     protection under the amended PVPA, the notice given by the 
     owner must specify that the variety is protected under the 
     Act as amended. Section 13(c)(2) extends the provisions of 
     section 128 of the PVPA to any person using false or 
     misleading statements or labels concerning protection under 
     the PVPA as amended. This includes claiming provisions of the 
     amended Act apply to a variety, when they do not.
       Section 16. Establishes that these amendments will be 
     effective 180 days after the date of enactment in order to 
     provide for the issuance of new regulations and for the 
     efficient transition from current law.

                          ____________________