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A Blessing and A Curse: Plant Variety Protection Act Enforcement

March 30, 2017
Post by Caitlin M. Andersen

The concept of protecting and enforcing intellectual property associated with plants is nothing new to the attorneys of McKee, Voorhees, and Sease. In 2001, Ed Sease successfully argued the landmark decision ofJ.E.M. Ag Supply v. Pioneer Hi-Bred Int'l before the United States Supreme Court. In addressing the issue of whether plants could be protected under utility patent law, the Court held there no statement in the legislative history of the Patent Act that prohibited both utility patents and protection under the Plant Variety Protection Act (PVPA or PVP).

Today, there are many reasons for selecting a protection strategy for plants. The variety of options include utility patents, plant patents, and PVP certificates with various enforcement options and costs. While plant and utility patents last for twenty years from their filing date, PVP certificates expire 20 years (25 years for trees and vines) after issuance. There is a trade-off in terms of enforcement, as PVP certificates have two exemptions: the Farmer's Exemption and the Research Exemption. Under the Farmer's Exemption, a lawful purchaser of a PVP-only protected variety may keep or "save"seed from harvest for the farmer's own planting in the next growing seasons in perpetuity, provided that no infringing act is done during that time. Similarly, the Research Exemption, the use or reproduction of a protected variety is non-infringing if it is for breeding or bona fide research.

While historically enforcement of PVP rights have been against dealers and companies, there has been an increase of PVP certificate owners utilizing the broad enforcement provisions of the PVPA to crack down on infringement by farmers and growers.

Under the PVPA, infringement is defined as anyone who tries to do or does:

  • Sell or market, offer or expose for sale, deliver, ship, consign, exchange, or solicit offer to buy, or any other transfer of title or possession of it
  • Import
  • Sexually multiply for purposes of marketing
  • Use in producing a hybrid (distinguished from developing)
  • Use for unauthorized propagation if so marked
  • Dispense the variety to another, in a form which can be propagated, without notice as to being a protected variety
  • Condition for purpose of propagation, except as necessary for farmer/breeder exemption
  • Keep in stock for any of the above purposes
  • Perform any of the above
  • Induce any of the above

 

With this broad coverage, farmers must be aware of the intellectual property that applies to for seed they are purchasing and/or receiving. Farms cannot exchange protected varieties with their neighbor, whether or not money is exchanged. For example, trading a protected variety to a neighbor for help with harvest is an act of infringement. Also, failure to disclose the variety as protected, for example when selling seed out of a bin without authorization to another, is infringement. Thus, it is incredibly important that a farmer keep track of the location of the protected variety and attempt to avoid intermixing the saved protected seed with other varieties.

Recovery for PVP owners can include injunctive relief as well as damages should a federal law suit be filed. In our experience at MVS, where we routinely handle PVP infringement actions, it is common for most cases to settle prior to the filing of a complaint. Settlement may be reached through careful consideration of the amount of infringing product, market value, and most importantly, understanding of the grower and their operation. This careful balance ensures the PVP owner's rights are protected and that the grower can continue to use protected varieties with superior traits.  

Caitlin Andersen is an Associate Attorney in the Litigation Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Caitlin directly via email at caitlin.andersen@ipmvs.com .


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The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.

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