Variety protection regulations
The Plant Variety Protection Act (PVPA) provides patent-like rights to plant variety breeders and developers through its voluntary Plant Variety Protection (PVP) program.
Its primary purpose is to allow plant breeders to protect their varieties, and ensure they’ll benefit from their development and recover their research costs. Without the PVP, the only protection breeders had was the biological protection of hybrids. The act was passed to encourage the development of new non-hybrid varieties.
The PVPA was originally signed into law on Dec. 24, 1970, and later amended on April 4, 1995 to add protection to potatoes and other tubers.
What the act protects
Varieties protected under the PVP can only be sold or advertised for seeding purposes by the protection certificate’s owner or with the owner’s permission. The certificate owner may bring civil action against persons infringing on his or her rights, and may ask a court to issue an injunction to prevent others from violating proprietary rights.
Damages awarded by a court must at least compensate the certificate owner for the infringement. Awards may include attorney fees and up to triple damages if willful infringement is found. The term of the protection expires 18 years after the certificate was issued for varieties filed before April 4, 1994, and 20 years after the certificate was issued for varieties covered under the amended act.
Passing the amended PVPA allowed the United States to be a signatory in the International Convention for the Protection of New Varieties of Plants (UPOV). This ensures proprietary rights on varieties are respected in many countries worldwide.
Types of protection
The developer of a variety has two options for plant variety protection under PVP.
The first option enables the developer and certificate-holder to sell certified or uncertified seed of the variety. If certificate holders’ rights are infringed upon within the period of protection, they must resort to civil action.
Certificate holders aren’t covered under Title V of the Federal Seed Act and violators can’t be prosecuted by the federal or state government. Similar to patent rights, certificate holders can authorize the use of their varieties in any way they wish on a royalty or fee basis.
The second option for protecting a variety is the certification-only option that uses the provision of Title V of the Federal Seed Act. The federal or state government may prosecute violators of these laws.
A variety protected in this manner may only be sold as a class of certified seed. Sales of uncertified seed by variety name is a violation of the certificate owner’s rights and federal and state seed laws.
Most state institutions and some private companies protect their varieties under this option. Violations of any provision, rule or regulation of the Federal Seed Act is a misdemeanor punishable by a fine not to exceed $2,000. Farmers who wish to produce seed of protected varieties for sale must get authorization from the certificate’s owner.
Some acts performed without the certificate owner’s authority, which constitute infringement of the owner’s rights, include:
Using seed marketed as “unauthorized propagation prohibited” to produce seed of the variety to market for growing purposes.
Selling or advertising a protected variety.
Distributing the variety to another person without informing them the variety is protected.
Importing the variety into the United States or exporting it.
Including a third party to commit any of the above acts.
In addition to the above infringements, selling varieties whose Certificate of Protection was issued under the amended act after April 4, 1994 are subject to further regulations:
Seed-protected varieties must be sold by variety name.
Conditioners who knowingly clean seed of protected varieties for sale are subject to the same penalties imposed on the seed sellers.
Identifying protected varieties
It’s the seller’s responsibility to inform the buyer if a variety is protected.
Seed containers should be labeled indicating the type of protection the owner has applied. If the variety owner chooses to sell either uncertified or certified seed, the label should state, “unauthorized propagation prohibited – U.S. protected variety.”
This statement, or others similar to it as defined in the act, is sufficient notification of protection. If the seed is purchased in bulk, the appropriate statement should be printed on the bulk sales certificate.
Exemptions under the act
The original PVPA specifies a farmer exemption in the “saved seed” clause that may be used by a grower who isn’t involved with producing crops for seeding purposes. This exemption applies to:
Varieties protected by PVPA.
Varieties protected under the certification-only option of the Federal Seed Act and whose Certificate of Protection was issued before April 4, 1996.
Farmers whose primary occupation is producing crops for food or feed and who’ve obtained seed of a variety protected under the original act may save seed for their own use from personal crop production, or sell a certain amount to another farmer.
How much seed can be sold
The amount of seed that can be sold, which was established in U.S. Supreme Court case Asgrow v. Winterboer, is a quantity no greater than the amount of seed the grower originally planted to produce the seed crop.
This exemption doesn’t cover varieties whose certificate of protection was issued after April 4, 1994, so seed sales of these varieties aren’t allowed without the certificate holder’s permission.
Reviewed in 2018