Plant Variety Protection Act
Encyclopedia
The Plant Variety Protection Act of 1970 (PVPA), 7 U.S.C. §§ 2321-2582, is an intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...

 statute in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

. The PVPA gives breeders up to 25 years of exclusive control over new, distinct, uniform, and stable sexually reproduced or tuber propagated plant varieties. A major expression of plant breeders' rights
Plant breeders' rights
Plant breeders' rights , also known as plant variety rights , are rights granted to the breeder of a new variety of plant that give him exclusive control over the propagating material and harvested material of a new variety for a number of years.With these rights, the breeder can choose...

 in the United States, the PVPA grants protection similar to that available through patents, but these legal schemes differ in critical respects. The PVPA should not be confused with plant patents
Plant Patent Act
The Plant Patent Act of 1930 is a United States federal law spurred by the work of Luther Burbank....

, which are limited to asexually reproduced plants (not including tuber propagated plants).

Basic provisions

The PVPA confers a limited period of legal control to breeders of sexually reproduced or tuber
Tuber
Tubers are various types of modified plant structures that are enlarged to store nutrients. They are used by plants to survive the winter or dry months and provide energy and nutrients for regrowth during the next growing season and they are a means of asexual reproduction...

 propagated plant varieties. In order to be eligible for a certificate under the PVPA, a plant variety must satisfy four requirements. First, it must be new, in the sense that propagating or harvested material has not been sold or otherwise disposed of for purposes of exploitation for more than one year in the United States, or more than four years in any foreign jurisdiction (or six years in the case of a tree or vine). Second, the variety must be distinct -- that is, clearly distinguishable from any other publicly known variety. Distinctness may be based on one or more identifiable morphological, physiological, or other characteristics, including commercially valuable characteristics affecting activities such as milling and baking (in the case of wheat
Wheat
Wheat is a cereal grain, originally from the Levant region of the Near East, but now cultivated worldwide. In 2007 world production of wheat was 607 million tons, making it the third most-produced cereal after maize and rice...

). Third, the variety must be uniform, in the sense that any variations are describable, predictable, and commercially acceptable. Finally, the variety must be stable, in the sense that the variety, when reproduced, will remain unchanged with regard to its essential and distinctive characteristics within a reasonable degree of commercial reliability.

A plant variety certificate gives the breeder the right to exclude others from selling the variety, or offering it for sale, or reproducing it, or importing it, or exporting it, or using it in producing (as distinguished from developing) a hybrid or different variety. The term of protection runs 20 years from the certificate's date of issue, or 25 years in the case of a tree or vine.

Exemptions

Unlike the Patent Act of 1952
Patent Act of 1952
The U.S. Patent Act of 1952 clarified and simplified existing U.S. patent law. It also effected substantive changes, including the incorporation of the requirement for invention and the judicial doctrine of contributory infringement The U.S. Patent Act of 1952 clarified and simplified existing...

, the PVPA contains three exemptions that significantly limit the scope of the plant breeder's exclusive right
Exclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...

. First, the PVPA's provision safeguarding the "public interest in wide usage" allows the United States Department of Agriculture
United States Department of Agriculture
The United States Department of Agriculture is the United States federal executive department responsible for developing and executing U.S. federal government policy on farming, agriculture, and food...

 to declare an otherwise protected variety open on the basis of equitable remuneration to the owner, upon a finding that no more than two years of compulsory licensing of a protected variety is necessary in order to insure an adequate supply of fiber, food, or feed and that the owner is unwilling or unable to meet public demand at a price which may reasonably be deemed fair. Second, the PVPA's "research exemption" declares that the use and reproduction of a protected variety for plant breeding or other bona fide research shall not constitute infringement.

The PVPA's third exemption permits a farmer to save seed from protected varieties and to use such saved seed in the production of a crop without infringement. Prior to 1994, this exemption also allowed farmers to sell such saved seed to others without infringement. Asgrow Seed Company sued Denny and Becky Winterboer over the scope of this exemption. After Asgrow won at District Court and then lost at the Court of Appeals. The scope of the exemption to sell seeds was confirmed and defined by the 1995 Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 decision in Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995). In 1994, legislation to bring the PVPA into compliance with the 1991 Act of the UPOV Convention also included amendments that eliminated the exemption for sales, but continued to allow farmers to save and replant seed on their own farms without infringement.

Contrasting plant variety certificates, plant patents, and utility patents

Plant variety certificates should not be confused with plant patents. The Plant Variety Protection Act and the Plant Patent Act
Plant Patent Act
The Plant Patent Act of 1930 is a United States federal law spurred by the work of Luther Burbank....

 of 1930 provide mutually exclusive remedies. The PVPA protects sexually reproduced and tuber
Tuber
Tubers are various types of modified plant structures that are enlarged to store nutrients. They are used by plants to survive the winter or dry months and provide energy and nutrients for regrowth during the next growing season and they are a means of asexual reproduction...

 propagated plants. The Plant Patent Act is limited to asexually reproduced plants, excluding tuber propagated plants.

By contrast, a plant breeder may choose to protect his or her new varieties under either the PVPA or the Patent Act of 1952. The PVPA authorizes the issuance of plant variety protection certificates; the Patent Act authorizes utility patents. The landmark Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 decision of Diamond v. Chakrabarty
Diamond v. Chakrabarty
Diamond v. Chakrabarty, , was a United States Supreme Court case dealing with whether genetically modified organisms can be patented.-Background:...

, 447 U.S. 303
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

 (1980), suggested the possibility of securing utility patents on plants previously thought eligible solely for protection under the PVPA. Two decades later, in the 2001 decision of J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

 (2001), the Court conclusively held that sexually reproduced plants eligible for protection under the PVPA are also eligible for utility patents.

The PVPA and international law

The Plant Variety Protection Act represents the United States' effort to comply with the Union pour la Protection des Obtentions Végétales (also known as UPOV or the International Union for the Protection of New Varieties of Plants
International Union for the Protection of New Varieties of Plants
The International Union for the Protection of New Varieties of Plants or UPOV is an intergovernmental organization with headquarters in Geneva, Switzerland. The current Secretary-General of UPOV is Francis Gurry....

), an international treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

 concerning plant breeders' rights
Plant breeders' rights
Plant breeders' rights , also known as plant variety rights , are rights granted to the breeder of a new variety of plant that give him exclusive control over the propagating material and harvested material of a new variety for a number of years.With these rights, the breeder can choose...

. The PVPA likewise constitutes part of the United States' compliance with the Trade Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...

 annex of the World Trade Organization
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...

 treaty, also known as TRIPs.

See also

  • Intellectual property
    Intellectual property
    Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...

  • Patents
  • Plant breeders' rights
    Plant breeders' rights
    Plant breeders' rights , also known as plant variety rights , are rights granted to the breeder of a new variety of plant that give him exclusive control over the propagating material and harvested material of a new variety for a number of years.With these rights, the breeder can choose...

  • Plant Patent Act of 1930
  • International Union for the Protection of New Varieties of Plants
    International Union for the Protection of New Varieties of Plants
    The International Union for the Protection of New Varieties of Plants or UPOV is an intergovernmental organization with headquarters in Geneva, Switzerland. The current Secretary-General of UPOV is Francis Gurry....

     (UPOV)
  • Trade Related Aspects of Intellectual Property Rights (TRIPs)
  • List of United States federal legislation

Further reading

External links

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