The Plant Variety Protection Act of 1970 (PVPA), 7 U.S.C. §§ 2321-2582, is an

intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...

statute in the

United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...

. 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 (PBR), also known as plant variety rights (PVR), are rights granted in certain places to the breeder of a new variety of plant that give the breeder exclusive control over the propagating material (including seed, cuttin ...

in the United States, the PVPA grants protection similar to that available through

patents A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an sufficiency of disclosure, enabling discl ...

, but these legal schemes differ in critical respects. The PVPA should not be confused with

plant patents Plant breeders' rights (PBR), also known as plant variety rights (PVR), are rights granted in certain places to the breeder of a new variety of plant that give the breeder exclusive control over the propagating material (including seed, cuttings ...

, 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 Tubers are a type of enlarged structure that plants use as storage organs for nutrients, derived from stems or roots. Tubers help plants perennate (survive winter or dry months), provide energy and nutrients, and are a means of asexual reproduc ...

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 is a group of wild and crop domestication, domesticated Poaceae, grasses of the genus ''Triticum'' (). They are Agriculture, cultivated for their cereal grains, which are staple foods around the world. Well-known Taxonomy of wheat, whe ...

). 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 Hybrid may refer to: Science * Hybrid (biology), an offspring resulting from cross-breeding ** Hybrid grape, grape varieties produced by cross-breeding two ''Vitis'' species ** Hybridity, the property of a hybrid plant which is a union of two diff ...

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 The Patent Act of 1952 clarified and simplified existing U.S. patent law. It also effected substantive changes, including the codification of the requirement for non-obviousness and the judicial doctrine of contributory infringement. As amended, ...

, the PVPA contains three exemptions that significantly limit the scope of the plant breeder's

exclusive right An exclusive right, or exclusivity, is a ''de facto'', non-tangible prerogative existing in law (that is, the power or, in a wider sense, right) to perform an action or acquire a benefit and to permit or deny others the right to perform the same ...

. First, the PVPA's provision safeguarding the "public interest in wide usage" allows the

United States Department of Agriculture The United States Department of Agriculture (USDA) is an executive department of the United States federal government that aims to meet the needs of commercial farming and livestock food production, promotes agricultural trade and producti ...

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 A compulsory license provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of adjudication or arbitration. In essence, under a compulsory license, an i ...

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. 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 In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...

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 (PVPA) and the

Plant Patent Act The Plant Patent Act of 1930 (enacted on June 17, 1930 as Title III of the Smoot–Hawley Tariff, ch. 497, , codified as 35 U.S.C.br>Ch. 15 is a United States federal law spurred by the work of Luther Burbank and the nursery industry. This piec ...

of 1930 provide protection based on different types of plant reproductive strategies. The PVPA, which authorizes plant variety protection certificates, protects sexually reproduced and

propagated plants, whereas the Plant Patent Act, which authorizes plant patents, is limited to asexually reproduced plants, excluding tuber propagated plants. However, the same plant may be protected under both the Plant Variety Protection Act and the Plant Patent Act of 1930. The most appropriate means of protection may be decided by the applicant based on the applicant's business requirements. A plant may also be eligible for protection under the Patent Act of 1952, as long as patentability requirements are met. Additionally, the same plant may be protected by a utility patent as well as a plant variety protection certificate and/or a plant patent. The landmark

decision of ''

Diamond v. Chakrabarty ''Diamond v. Chakrabarty'', 447 U.S. 303 (1980), was a United States Supreme Court case dealing with whether living organisms can be patented. Writing for a five-justice majority, Chief Justice Warren E. Burger held that human-made bacteria coul ...

'', 447 U.S. 303 (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 (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 The International Union for the Protection of New Varieties of Plants or UPOV () is a treaty body (non-United Nations intergovernmental organization) with headquarters in Geneva, Switzerland. Its objective is to provide an effective system for p ...

), an international

treaty A treaty is a formal, legally binding written agreement between sovereign states and/or international organizations that is governed by international law. A treaty may also be known as an international agreement, protocol, covenant, convention ...

concerning

. The PVPA likewise constitutes part of the United States' compliance with the Trade Related Aspects of Intellectual Property Rights annex of the

World Trade Organization The World Trade Organization (WTO) is an intergovernmental organization headquartered in Geneva, Switzerland that regulates and facilitates international trade. Governments use the organization to establish, revise, and enforce the rules that g ...

treaty, also known as TRIPs.

References

External links

Plant Variety Protection Office (a division of the United States Department of Agriculture)

Text of the PVPA in .pdf format

Text of the Plant Variety Protection Act in HTML
* * * {{ussc, 534, 124, ''J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc.'' Agronomy United States federal intellectual property legislation United States biotechnology law