Plant Variety Protection Act (1970)

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Plant Variety Protection Act (1970)

Mark D. Janis

The Plant Variety Protection Act (PVPA) (P.L. 91-577, 84 Stat. 1542) provides intellectual property protection for seed-grown plants. "Intellectual property" refers to patents, copyrights, and other types of rights in intangibles. For example, intellectual property rights might protect the innovative concept that makes a computer work or the creative expression in a book or song. Plant variety protection (PVP) is generally weaker than patent protection, and PVP certificates are granted by the PVP Office of the U.S. Department of Agriculture, not the U.S. Patent and Trademark Office.

In the early twentieth century, plant breeding became recognized as a "science," and plant breeders argued that plants should be recognized as patentable inventions. In 1930 Congress passed a Plant Patent Act, but it only awarded patent protection to plants that were reproduced asexually—that is, by cuttings. As a practical matter, plant patents benefited nursery operators who propagated fruit trees, ornamentals, and roses primarily through cuttings, but did not benefit breeders who propagated new crop varieties (such as grain crops or cotton) through seed.

In the 1960s several European countries agreed to incorporate "variety" protection, a new type of intellectual property protection for plants, into their national laws, under a treaty known as the UPOV Treaty. The United States did not immediately sign the treaty, but did adopt variety protection, passing the PVPA in 1970.

Any seed-grown plant variety is potentially eligible for PVPA protection if the breeder files a proper application with the PVP Office and if the variety meets all of the prerequisites for protection. There are four major prerequisites: the variety must be new, distinct, uniform, and stable. "New" means that the variety has either not been commercialized at all before the PVP application filing date, or has been commercialized only within a specified time before the filing date and no earlier. "Distinct" means that the variety is clearly distinguishable from other known varieties. "Uniform" and "stable" mean that the variety's characteristics are predictable when the variety is reproduced.

If the PVP Office decides that an application meets all of the prerequisites, it issues a PVP certificate, which remains in force for twenty years for most varieties. The owner of a PVP certificate has the right to prevent others in the United States from reproducing the protected variety without authorization. However, there are many limitations on this general right. For example, reproducing a PVP-protected variety for noncommercial purposes or for bona fide plant breeding research is not prohibited. Another important limitation, the "saved seed" exemption, allows farmers who grow PVP-protected varieties to save some of the resulting seed to produce a subsequent crop for use on the farm, but does not allow the farmer to sell the saved seed to others for crop production.

The PVP Office has issued PVP certificates for many crop varieties, although PVP certificate owners have initiated very few court actions. In 1994 Congress amended the PVPA to clarify the "saved seed" exemption and to provide that PVP rights extended not only to the protected variety but also to varieties "essentially derived from" the protected variety. In 2001 the Supreme Court determined that the general U.S. patent law applies to seed-grown plants, so plant breeders today can seek both patent protection and protection under the PVPA for seed-grown plants.

See also: Patent Acts.