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7 U.S.C. § 2402 — Right to plant variety protection; plant varieties protectable
Federal law — U.S. Code and appendices · legal_authorities
**(a) In general** The 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
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Stable record: federal_law:legal_authorities:record_usc_93d4e6159844316c8338e7ad
Source file: Laws/federal/codes/united-states-code/title-7/section-2402-right-to-plant-variety-protection-plant-varieties-protectable--b6c0915efe.md
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Passage SHA-256: 02492e2fc9881071f991436a52e97170177c504cc3b3f209153339dfa3be021a
Source location: Title 7, Chapter 57, § 2402; chapter-057-plant-variety-protection.md
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**(a) In general** The 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.
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Federal law — U.S. Code and appendices · legal_authorities
**(a) Definitions** As used in this chapter:
(1) **Asexually reproduced** — The term “asexually reproduced” means produced by a method of plant propagation using vegetative material (other than seed) from a single parent, including cuttings, grafting, tissue culture, and propagation by root division.
(2) **Basic seed** — The term “basic seed” means the seed planted to produce certified or commercial seed.
(3) **Breeder** — The term “breeder” means the person who directs the final breeding creating a variety or who discovers and develops a variety. If the actions are conducted by an agent on behalf of a principal, the principal, rather than the agent, shall be considered the breeder. The term does not include a person who redevelops or rediscovers a variety the existence of which is publicly known or a matter of common knowledge.
(4) **Essentially derived variety**
(A) *In general* — The term “essentially derived variety” means a variety that—
(i) is predominantly derived from another variety (referred to in this paragraph as the “initial variety”) or from a variety that is predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety;
(ii) is clearly distinguishable from the initial variety; and
(iii) except for differences that result from the act of derivation, conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.
(B) *Methods* — An essentially derived variety may be obtained by the selection of a natural or induced mutant or of a somaclonal variant, the selection of a variant individual from plants of the
Source: Supplied U.S. Code snapshot — release unconfirmed · 7 U.S.C. § 2401
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Federal law — U.S. Code and appendices · legal_authorities
**(a)** Certificates of plant variety protection shall be presumed valid. The burden of establishing invalidity of a plant variety protection shall rest on the party asserting invalidity.
**(b)** The following shall be defenses in any action charging infringement and shall be pleaded: (1) noninfringement, absence of liability for infringement, or unenforceability; (2) invalidity of the plant variety protection in suit on any ground specified in [section 2402 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title7-section2402&num=0&edition=prelim) as a condition for protectability; (3) invalidity of the plant variety protection in suit for failure to comply with any requirement of [section 2422 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title7-section2422&num=0&edition=prelim); (4) that the asserted infringement was performed under an existing certificate adverse to that asserted and prior to notice of the infringement; and (5) any other fact or act made a defense by this chapter.
Source: Supplied U.S. Code snapshot — release unconfirmed · 7 U.S.C. § 2562
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Federal law — U.S. Code and appendices · legal_authorities
Page 1500
TITLE 7—AGRICULTURE
§ 2402
(1) Sale or disposition for nonreproductive
purposes
The sale or disposition, for other than repro-
ductive purposes, of harvested material pro-
duced as a result of experimentation or testing
of a variety to ascertain the characteristics of
the variety, or as a by-product of increasing a
variety, shall not be considered to be a sale or
disposition for purposes of exploitation of the
variety.
(2) Sale or disposition for reproductive pur-
poses
The sale or disposition of a variety for repro-
ductive purposes shall not be considered to be
a sale or disposition for the purposes of exploi-
tation of the variety if the sale or disposition
is done as an integral part of a program of ex-
perimentation or testing to ascertain the
characteristics of the variety, or to increase
the variety on behalf of the breeder or the suc-
cessor in interest of the breeder.
(3) Sale or disposition of hybrid seed
The sale or disposition of hybrid seed shall
be considered to be a sale or disposition of har-
vested material of the varieties from which
the seed was produced.
(4) Application for protection or entering into
a register of varieties
The filing of an application for the protec-
tion or for the entering of a variety in an offi-
cial register of varieties, in any country, shall
be considered to render the variety a matter of
common knowledge from the date of the appli-
cation, if the application leads to the granting
of protection or to the entering of the variety
in the official register of varieties, as the case
may be.
(5) Distinctness
The distinctness of one variety from another
may be based on one or more identifiable mor-
phological, physiological, or other characteris-
tics (including any characteristics evidenced
b
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