Exciting News from the USDA Announced Today for US Plant BreedersJanuary 25, 2024

The United States’ implementation of UPOV’s Plant Breeders Rights is singularly unique in the world, in that it does not require field trials and testing results.  An applicant’s representations as to Distinctness, Uniformity and Stability, are accepted without confirmation in a US application for Plant Breeders Rights, or PVP.  When filing for analogous Plant Breeders Rights in other countries, many US applicants are surprised and frustrated by the requirements of growth trials conducted in those countries to confirm the representation made in an application for protection.  These growth trials are costly, require importation of seed and plants, and demand years of commitment to data gathering.  Often these  trials are not just of the variety at issue but also of comparators.  Some countries allow private testing and others require government sponsored and approved sites and managers.  This makes PBR rights difficult and cumbersome for US residents that need protection abroad.

The PVP office within the USDA has been working for years to help US applicants with these issues.  In a first step, the US Plant Variety Protection Office began accepting DUS reports from other countries in our US PVP applications (even though they are not required).  This was with the hope that other countries would then grant reciprocity for US conducted DUS testing.

Today the USDA announced that they have reached agreements with Plant Breeders’ Rights (PBR) offices of Canada and Japan to accept US DUS reports!  Japan will now accept DUS reports for seed and vegetative crops on a case-by-case basis, and Canada will now accept US DUS reports without additional comparative trials for all vegetative varieties.  For seed varieties, Canada accepts US DUS reports to satisfy one year of comparative trial; a second year of comparative trial is required in Canada.

What this means for US plant breeders is that they no longer have to export seed to foreign countries, or engage agents there to conduct lengthy growth trials.  UPOV recently expanded its electronic application system to add a DUS Report Exchange Module, where members can post and request DUS reports from one another.  THE US PVP office has signed up to participate.

See the link below for further information on the USDA DUS testing:  https://www.ams.usda.gov/services/plant-variety-protection/dus-guidelines

Heidi Sease Nebel is a Partner, Patent Attorney and Chair of the Chemical and Biotechnology Practice Group at McKee, Voorhees & Sease, PLC. She is also Vice Chair of the Patent Public Advisory Committee (PPAC).  For additional information please visit www.ipmvs.com.