Plant Variety Protection:
An Alternative to Patents

Published in Probe Volume 2(2): Summer 1992


Janice M. Strachan
Plant Variety Examiner
Plant Variety Protection Office
USDA, Agricultural Marketing Service
Beltsville, MD

Development of a new plant cultivar or variety, either by "traditional" breeding methods or by "modern" molecular modification, requires a lot of time and effort. To recover the costs of this research and development, the breeder may seek to obtain exclusive marketing rights for the new variety. Keeping it a trade secret is one way to do this, as well as obtaining either a plant patent, utility patent, or plant variety protection. The method chosen depends on the specific benefits and limitations of the protection, and the costs involved. Plant variety protection is a good choice for many breeders.

History

The 1930 Plant Patent Act first allowed for patenting of asexually reproduced cultivars (except tubers). By the 1960's, some European countries enacted plant breeders' rights laws. It was demonstrated that sexually reproduced varieties were uniform and stable enough to be included in these laws. During the 1960's several attempts were made to enact similar protection in the United States, including a proposal to revise the Plant Patent Act to include sexually reproduced plants. These early attempts were unsuccessful.

The Plant Variety Protection (PVP) Act was enacted on December 24, 1970. Its purpose is to "encourage the development of novel varieties of sexually reproduced plants" by providing their owners with exclusive marketing rights of them in the United States. The requirements of protection are that the variety be uniform, stable, and distinct from all other varieties. Fungi, bacteria, and first generation hybrids are excluded from PVP protection. Varieties sold or used in the United States for longer than 1 year or more than 4 years in a foreign country are also ineligible for protection.

A Certificate of Protection remains in effect for 18 years from the date of issuance. The owner may specify that the variety be sold by variety name only as a class of certified seed, as defined in the Federal Seed Act. Once so specified, the designation cannot be reversed. There are two exemptions to the rights granted. One exists to allow farmers to save seed for use on their own farm or to sell it to their neighbors. Recent court decisions have defined who is a "farmer" and how much seed can be saved. Another exemption allows research to be conducted using the variety. This allows for the free exchange of germplasm within the research community.

PVP Office

The PVP Office is responsible for administering the PVP Act. It is organized within the Agricultural Marketing Service of the U.S. Department of Agriculture. Commissioner Kenneth Evans heads the PVP Office staff, which includes five plant variety examiners and three associate examiners. The PVP Office accepts approximately 270 applications per year. Since 1971, over 2,700 Certificates of Protection have been issued in over 100 crops. Almost 75 percent of them were issued within 24 months of filing the application. Some certificates are no longer in effect due to being abandoned, withdrawn, or expired, but no PVP Certificate of Protection has been overturned in a court of law.

How To Apply

To request protection for a new variety, the applicant completes an application packet. The complete packet must contain the following items: exhibits A, B, C, and E, a seed sample, and a fee.

Exhibit A. The origin and breeding history of the variety are presented, including genealogy, breeding method, selection criteria, and evidence of uniformity and stability. Variants, predictable deviants from the standard variety description, must be described and their frequencies stated.

Exhibit B. The novelty statement lists specific characters in which the subject variety differs from all other varieties in the crop. Evidence for the differences is also included when the differences are not obvious.

Exhibit C. An objective description of the variety is given. The PVP Office has developed forms for use in describing varieties of many crops. They are constantly improving older forms or creating forms for new crops. Breeders and other knowledgeable persons are consulted before a draft form is finalized.

Exhibit E. The basis of the applicant's ownership is stated by describing how ownership was obtained.

Seed Sample. A voucher specimen of 2,500 viable seeds (85 percent or greater germination rate) is required when the application is filed. The sample is stored at the National Seed Storage Laboratory in Ft. Collins, CO. The applicants may be asked to replenish this sample if the germination rate or sample size fall below adequate levels during the protection period.

Fees. The filing fee ($250) and the examination fee ($1,900) are payable to the Treasurer of the United States. The PVP Office is completely funded by user fees, so fees may occasionally be raised to cover operating costs.

Additional information concerning the variety can by given in exhibit D. Information in this exhibit may include test-cross results, trial data, isozyme or other molecular test results, photographs, possible uses for the variety or its products, specific descriptive information not disclosed elsewhere in the application, or anything the applicant feels may be useful. This section may be omitted if the data is placed in another exhibit.

Examination Process

Once a complete application is filed in the PVP Office, the application is assigned to an examiner. The examiner conducts a literature search of the crop and gathers descriptive information on varieties from grow-out trials, release notices, seed catalogs, PVP applications, and other published sources. The examiner maintains the variety descriptions in computerized crop databases. Over 35,000 different varieties in more than 100 crops are currently in the system. The examiner then uses the appropriate database to determine the novelty of the application variety.

To be granted a Certificate of Protection, a variety must be novel based on its distinctness from all previously existing varieties, its uniformity, and its stability. These items are disclosed by the applicant in his application packet. The PVP Office does not perform grow-out trials, therefore, the applicant must gather and report all information that is required to complete the application. This information may include complete descriptions of similar varieties, color chart references, statistical analyses, photographs, plant specimens, or other information that the examiner needs to complete the evaluation of the application. If additional information is requested by the examiner, the applicant is given sufficient time to provide this information. Extensions of time can be requested by the applicant.

If the variety is found to be novel, then the certificate fee ($250) is requested and a Certificate of Protection is issued. A short summary of the basis of novelty is published in the quarterly Official Journal. The most effective novelty statement, both in exhibit B and in the Journal, is one in which the applicant states the most similar previously existing variety, and then lists the characters by which his or her variety differs from that "most similar" variety. If the application variety differs from the most similar variety, it follows that it must differ from all other varieties.

Current Issues

What is the minimum difference between varieties that indicates "distinctness"? This question has led to many discussions within the PVP Office, its advisory board, and the breeding community at large. The PVP Act states that a novel variety is distinct when it "clearly differs by one or more identifiable morphological, physiological, or other characteristics ... from all prior varieties of public knowledge." The meanings of "characteristic" and "identifiable" are purposefully vague in this definition to allow for future advances in knowledge and methodology.

Table 2
Some Recently Protected Varieties
VarietyCropDeveloper
HorizonField BeanAsgrow Seed Co.
Wax 216 and
Bush Romano 350
Garden BeanRogers NK Seed Co.
PrimoGarden BeanFerry-Morse Seed Co.
LimousineKentucky BluegrassDeutsche Saatveredelung
Lippstadt
LH191, LH197, and
LH 215
CornHolden's Foundation Seeds, Inc.
Lp215DCornWilson Seeds, Inc.
PHJ90, PHK93, PHM81,
PHN66, PHR03, PHR55
PHR58, and PHW30
CornPioneer Hi-Bred
International, Inc.
MBSJ, MBUB, MM402A,
31BZ2, LIBC4, and
83IBI3
Corn DeKalb Plant Genetics
GeminiLettuceSakata Seed America, Inc.
BautistaLettuceRoyal Sluis
XP5034TomatoAsgrow Seed Co.
W2501 and
W2502
WheatAgriPro Biosciences

Characteristics used to describe the novelty of a variety should be stable and observable throughout the 18-year protection period. For this reason, small differences in quantifiable characteristics are seldom useful in distinguishing between varieties, no matter how statistically significant. The "importance" or "value" of characteristics to the productivity of the crop are not considered when making novelty decisions. Therefore, "cosmetic" traits, those which do not contribute to the productivity of the crop, can be used to distinguish among varieties. Some breeders argue that basing judgments on cosmetic traits trivializes a PVP certificate.

As new methods of varietal identification become available, the PVP Office consults with the plant breeding community and research experts to best use these procedures. The advent of isozyme analysis, RFLP's, RAPD's, VNTR's, and Short Tandem Repeat Length Polymorphisms has raised many questions. Should differences in nonsense regions or non-coding regions of chromosomes be allowed? If procedures for some analyses are not standardized, will database comparisons be meaningful? Who should be responsible for developing standard methods? What is a characteristic: a gene, an enzyme, a band, a base pair, or another level of information? When such information is used to establish novelty, will it remain repeatable and stable during the protection period?

As a member of the International Union for the Protection of New Varieties of Plants (UPOV), the United States provides plant variety protection to its citizens similar to what is being offered to citizens of other UPOV member countries. Recent changes in the UPOV Convention may require changes to the PVP Act to incorporate some new ideas. For example, the 1991 UPOV Convention introduces the idea of "essentially derived" varieties. The PVP Office and the U.S. plant breeding community are discussing this and other issues in the UPOV Convention, and how they may affect plant variety rights if included in the PVP Act.

Plant breeding is a dynamic industry, mingling the old methods with new technology to its best advantage. The PVP Office also mingles the old and new methods when determining the novelty of a plant variety. Their effectiveness shows in the growth of the breeding industry since 1970. To apply for protection, or to get more information about the PVP Act, write to: USDA, AMS, Plant Variety Protection Office, NAL Building, Room 500, Beltsville, MD 20705-2351 (Phone: 301-504-5518).