7 U.S.C. § 2402

Right to plant variety protection; plant varieties protectable

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(a) In generalThe breeder of any sexually reproduced, tuber propagated, or asexually reproduced plant variety (other than fungi or bacteria) who has so reproduced the variety, or the successor in interest of the breeder, shall be entitled to plant variety protection for the variety, subject to the conditions and requirements of this chapter, if the variety is—(1) new, in the sense that, on the date of filing of the application for plant variety protection, propagating or harvested material of the variety has not been sold or otherwise disposed of to other persons, by or with the consent of the breeder, or the successor in interest of the breeder, for purposes of exploitation of the variety—(A) in the United States, more than 1 year prior to the date of filing; or(B) in any area outside of the United States—(i) more than 4 years prior to the date of filing, except that in the case of a tuber propagated plant variety the Secretary may waive the 4-year limitation for a period ending 1 year after April 4, 1996; or(ii) in the case of a tree or vine, more than 6 years prior to the date of filing;(2) distinct, in the sense that the variety is clearly distinguishable from any other variety the existence of which is publicly known or a matter of common knowledge at the time of the filing of the application;(3) uniform, in the sense that any variations are describable, predictable, and commercially acceptable; and(4) stable, in the sense that the variety, when reproduced, will remain unchanged with regard to the essential and distinctive characteristics of the variety with a reasonable degree of reliability commensurate with that of varieties of the same category in which the same breeding method is employed.(b) Multiple applicants(1) In general

If 2 or more applicants submit applications on the same effective filing date for varieties that cannot be clearly distinguished from one another, but that fulfill all other requirements of subsection (a), the applicant who first complies with all requirements of this chapter shall be entitled to a certificate of plant variety protection, to the exclusion of any other applicant.

(2) Requirements completed on same date(A) In general

Except as provided in subparagraph (B), if 2 or more applicants comply with all requirements for protection on the same date, a certificate shall be issued for each variety.

(B) Varieties indistinguishable

If the varieties that are the subject of the applications cannot be distinguished in any manner, a single certificate shall be issued jointly to the applicants.

(Pub. L. 91–577, title II, § 42, Dec. 24, 1970, 84 Stat. 1547; Pub. L. 103–349, § 3, Oct. 6, 1994, 108 Stat. 3138; Pub. L. 104–127, title IX, § 913(a), Apr. 4, 1996, 110 Stat. 1186; Pub. L. 115–334, title X, § 10108(b), Dec. 20, 2018, 132 Stat. 4906.)Editorial NotesAmendments

2018—Subsec. (a). Pub. L. 115–334 substituted “, tuber propagated, or asexually reproduced” for “or tuber propagated” in introductory provisions.

1996—Subsec. (a)(1)(B)(i). Pub. L. 104–127 inserted “, except that in the case of a tuber propagated plant variety the Secretary may waive the 4-year limitation for a period ending 1 year after April 4, 1996” after “filing”.

1994—Pub. L. 103–349 amended section generally, substituting present provisions for substantially similar former provisions.

Statutory Notes and Related SubsidiariesEffective Date of 1994 Amendment

Amendment by Pub. L. 103–349 effective 180 days after Oct. 6, 1994, see section 15 of Pub. L. 103–349, set out as a note under section 2401 of this title.

Notes of Decisions

Cited in 8 cases (1 in the last 5 years), 1979–2022 · leading case: J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124 (2001).

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J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124 (2001). · cites it 8× “" 7 U. S. C. § 2402 (a). *139 Infringement of plant variety protection occurs, inter alia, if someone sells or markets the protected variety, sexually multiplies the variety as a step in marketing, uses the variety in producing a hybrid, or dispenses the variety without notice…”

Diamond v. Chakrabarty, 447 U.S. 303 (1980). · cites it 4× “7 U. S. C. § 2402 (a). The Court's attempts to supply explanations for this explicit exclusion ring hollow.”

Imazio Nursery, Inc. v. Dania Greenhouses, & Coastal Nursery, Jess Rodrigues, & Donna Rodrigues, 69 F.3d 1560 (Fed. Cir. 1996). · cites it 3× “” 7 U.S.C. § 2402 (a) (1994). The term “variety” is defined in the PVPA at 7 U.”

In re Bergy, 596 F.2d 952 (C.C.P.A. 1979). “The 1970 act is cited by the PTO for the exclusion in 7 U.S.C. § 2402 (a) of “fungi, bacteria, or first generation hybrids * * * The question is, why? We agree with Chakrabarty’s rational explanation that the exclusion from protected varieties in § 2402(a) was merely the…”

Delta & Pine Land Co. v. Peoples Gin Co. & Hollandale Seed & Delinting Co., Inc., 694 F.2d 1012 (5th Cir. 1983). “A “breeder of any novel variety of sexually reproduced plant (other than fungi, bacteria, or first generation hybrids) who has so reproduced the variety, or his successor in interest, shall be entitled to plant variety protection therefor____” 7 U.S.C. § 2402 . A certificate of…”

Pub. Varieties of Mississippi, Inc. v. Sun Valley Seed Co., 734 F. Supp. 250 (N.D. Miss. 1990). “5 See 7 U.S.C. § 2402 . Although certificates of plant variety protection have the general attributes of personal property, 7 U.”

Pioneer Hi-Bred Int'l, Inc. v. J.E.M. AG Supply Inc., 200 F.3d 1374 (Fed. Cir. 2000). “The basic requirements are as follows: 7 U.S.C. § 2402 (a). The breeder of any sexually reproduced or tuber propagated plant variety (other than fungi or bacteria) .”

Syngenta Seeds, LLC v. Seminis Vegetable Seeds, Inc. (E.D. Cal. 2022). “See 7 U.S.C. § 2402 (a). “The PVPA is regularly discussed in terms of patent law and the 1 Federal Circuit applies patent law to fill in the gaps in PVPA jurisprudence.”

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