Quick Facts...
- The Plant Variety Protection Act provides developers of new varieties
of plants patent-like rights that protect the reproduction and distribution
of their varieties.
- Varieties that are protected under the Plant Variety Protection
Act can be sold as seed stocks only with permission of the
certificate holder and in some cases, only as a class of
Certified seed.
- Varieties that are protected must have labels on the seed
containers indicating the type of protection.
- Farmers may save a limited amount of seed for replanting, but cannot
sell it to anyone without permission of the owner.
The Plant Variety Protection Act (PVPA) was originally signed into law
in 1970, and later amended in 1994. This act is a voluntary program that
provides patent-like rights to breeders, developers, and owners of plant
varieties. The amended act also added protection to potatoes and other
tuber Crops.
The primary purpose of the PVPA is to ensure that developers of varieties
would benefit and be able to recover research cost. Without the PVPA,
the only protection available to breeders was the biological protection
of inbreds used for hybrid seed production; hence, the act was passed
to encourage the development of new non-hybrid varieties.
What Protection Means
Varieties that are protected under the PVPA can be sold or advertised
for seeding purposes only by the owner of the protection certificate or
with the owner's permission. The owner of the certificate 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. The damages awarded by a court must at least compensate the certificate
owner for the infringement. Awards could also include attorney fees and
up to triple damages where willful infringement is found. The term of
the protection expires 18 years after the certificate is issued for varieties
filed under the original act, and 20 years for most varieties covered
under the amended act.
The passage of the amended PVPA has allowed the United
States to be a signatory in the international plant breeder's
rights treaty (UPOV), and therefore proprietary rights on
varieties are now respected in many countries worldwide.
Types of Protection
Two options for plant variety protection are available to
the developer of a variety. The first option enables the
developer and certificate holder to sell either certified or
uncertified seed of the variety. Certificate holders choosing
this option must resort to civil action if their rights are
infringed upon within the period of protection.
These certificate holders are not covered under Title V of the Federal
Seed Act nor the Colorado Seed Act and violators cannot be prosecuted
by the federal or state government. In a manner similar to patent rights,
certificate holders can authorize the use of their varieties in any way
they wish on a royalty or free basis.
The second option for protecting a variety is the "Certification only"
option that utilizes the provisions of Title V of the Federal Seed Act
and Section 35-27-113 (g)(h) of the Colorado Seed Act. Violators of these
laws may be prosecuted by the federal or state government. A variety protected
in this manner may be sold only as a class of Certified seed. Sales of
uncertified seed by variety name are in violation of both the certificate
owner rights and the federal and state seed laws.
Most state institutions and some private companies have chosen to protect
their varieties under the Title V 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. Violation of any rule or regulation of
the Colorado Seed Act is a misdemeanor punishable by a fine not to exceed
$2,500. Farmers who wish to produce seed of protected varieties for sale
must obtain authorization from the owner of the certificate.
Some acts performed without authority of the certificate
owner, 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, offering, delivering, consigning, exchanging or advertising for sale a protected variety.
- Dispensing the variety to another person without informing
that person that the variety is protected.
- Importing the variety into the United States or exporting
the variety from the United States.
- Inducing a third party to commit any of the above acts.
In addition to the above infringements, sales of varieties
whose Certificate of Protection was issued under the amended act
after April 4, 1994, are subject to further regulations:
- Seed of 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. The amount
of seed conditioned for a farmer cannot exceed the amount the farmer
will use for planting on the farm that produced the seed.The amended
PVP Act requires that if grain from a protected variety is in a form
that could be propagated, notice must be provided with the grain that
it is a protected variety for which unauthorized multiplication is prohibited.
Identifying Protected Varieties
It is the responsibility of the seller to inform the buyer
if a variety is protected. Seed containers should be labeled
indicating the type of protection for which the owner has
applied. If the owner of the variety has chosen 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 amended PVP Act allows for only two exemptions, 1) a farmer’s exemption
allows for saving a quantity of seed for the sole use of replanting on
the farmer’s land an area no larger than the area that was planted
to the original seed purchased. Sale of any quantity of seed protected
under the amended act is prohibited; and 2) a research exemption allows
for the use of protected varieties or plant parts for breeding to develop
a new variety.
Further Information
This publication does not include information pertaining to the application
procedure or eligibility requirements of varieties for protection. It
is intended for Consumers who purchase, produce and distribute seed stocks.
For further information regarding the PVPA or Title V, or a listing of
protected varieties, contact either the Colorado Seed Growers Association,
Colorado State University, Fort Collins, Colorado 80523; (970) 491-6202,
(www.seeds.colostate.edu) or The Plant Variety Protection Office, 10301
Baltimore Avenue, Room 401, Beltsville, MD 20705-2351, (www.ams.usda.gov/science/pvpo/PVPindex.htm).
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