The term of protection of the plant variety protection certificate has been extended from 18 to 20 years from the date of issue of the certificate. The term of protection for trees and vines is now 25 years from the date of issue of the certificate.
Section 2541 of the PVPA lists the acts that will infringe a plant variety protection certificate. The definition of infringement under this section has been broadened and now a certificate may also be infringed if the "variety" is "essentially derived" from the protected variety.
The PVPA provides that there are certain exceptions to infringement, the most well-known being the "farmer's exemption." The farmer's exemption, as modified by the current amendments to PVPA, provides that it is not an act of infringement:
for a person to save seed produced by him from seed obtained or descended from
seed obtained, by authority of the owner of the variety for seeding purposes
and use such saved seed in the production of a crop for use on his farm, or for
sale... for other than reproductive purposes ....of seed produced on a farm
either from seed obtained by authority of the owner for seeding purposes or
from seed produced by descent on such farm from seed obtained by authority of
the owner for seeding purposes....
The question of how much seed one farmer can sell to another under the farmer's exemption without infringing a plant variety protection certificate was heard before the Court of Appeals for the Federal Circuit in the case Asgrow Seed Co. v. Winterboer. The court held that the amount of seed one farmer sells to another is not limited to the amount of seed needed to plant an "ensuing" crop of the same size. This decision has been appealed to the U.S. Supreme Court. We will advise our clients of the Court's ruling.
November 1994 Index