7 U.S.C. § 2404 — Public interest in wide usage

Page 1501 TITLE 7—AGRICULTURE § 2404 est of the breeder, shall be entitled to plant va- riety 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 fil- ing of the application for plant variety protec- tion, propagating or harvested material of the variety has not been sold or otherwise dis- posed of to other persons, by or with the con- sent of the breeder, or the successor in inter- est 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 pe- riod 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 charac- teristics of the variety with a reasonable de- gree 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 com- plies with all requirements of this chapter shall be entitled to a certificate of plant vari- ety 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 re- quirements 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 Notes AMENDMENTS 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 ‘‘fil- ing’’. 1994—Pub. L. 103–349 amended section generally, sub- stituting present provisions for substantially similar former provisions. Statutory Notes and Related Subsidiaries EFFECTIVE 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. § 2403. Reciprocity limits Protection under this chapter may, by regula- tion, be limited to nationals of the United States, except where this limitation would vio- late a treaty and except that nationals of a for- eign state in which they are domiciled shall be entitled to so much of the protection here af- forded as is afforded by said foreign state to na- tionals of the United States for the same genus and species. (Pub. L. 91–577, title II, § 43, Dec. 24, 1970, 84 Stat. 1547.) § 2404. Public interest in wide usage The Secretary may declare a protected variety open to use on a basis of equitable remuneration to the owner, not less than a reasonable royalty, when the Secretary determines that such dec- laration is necessary in order to insure an ade- quate supply of fiber, food, or feed in this coun- try and that the owner is unwilling or unable to supply the public needs for the variety at a price which may reasonably be deemed fair. Such dec- laration may be, with or without limitation, with or without designation of what the remu- neration is to be; and shall be subject to review as under section 2461 or 2462 of this title (any finding that the price is not reasonable being re- viewable), and shall remain in effect not more than two years. In the event litigation is re- quired to collect such remuneration, a higher rate may be allowed by the court. (Pub. L. 91–577, title II, § 44, Dec. 24, 1970, 84 Stat. 1547; Pub. L. 103–349, § 13(f), Oct. 6, 1994, 108 Stat. 3143.) Editorial Notes AMENDMENTS 1994—Pub. L. 103–349 substituted ‘‘the Secretary’’ for ‘‘he’’ before ‘‘determines’’ in first sentence. Statutory Notes and Related Subsidiaries EFFECTIVE 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. Page 1502 TITLE 7—AGRICULTURE § 2421 PART E—APPLICATIONS; FORM; WHO MAY FILE; RELATING BACK; CONFIDENTIALITY § 2421. Application for recognition of plant vari- ety rights (a) An application for a certificate of Plant Variety Protection may be filed by the owner of the variety sought to be protected. The applica- tion shall be made in writing to the Secretary, shall be signed by or on behalf of the applicant, and shall be accompanied by the prescribed fee. (b) An error as to the naming of the breeder, without deceptive intent, may be corrected at any time, in accordance with regulations estab- lished by the Secretary. (Pub. L. 91–577, title II, § 51, Dec. 24, 1970, 84 Stat. 1548.) § 2422. Content of application An application for a certificate recognizing plant variety rights shall contain: (1) The name of the variety except that a temporary designation will suffice until the certificate is to be issued. The variety shall be named in accordance with regulations issued by the Secretary. (2) A description of the variety setting forth its distinctiveness, uniformity, and stability and a description of the genealogy and breed- ing procedure, when known. The Secretary may require amplification, including the sub- mission of adequate photographs or drawings or plant specimens, if the description is not adequate or as complete as is reasonably pos- sible, and submission of records or proof of ownership or of allegations made in the appli- cation. An applicant may add to or correct the description at any time, before the certificate is issued, upon a showing acceptable to the Secretary that the revised description is retro- actively accurate. Courts shall protect others from any injustice which would result. The Secretary may accept records of the breeder and of any official seed certifying agency in this country as evidence of stability where ap- plicable. (3) A statement of the basis of the claim of the applicant that the variety is new. (4) A declaration that a viable sample of basic seed (including any propagating mate- rial) necessary for propagation of the variety will be deposited and replenished periodically in a public repository in accordance with regu- lations to be established hereunder. (5) A statement of the basis of applicant’s ownership. (Pub. L. 91–577, title II, § 52, Dec. 24, 1970, 84 Stat. 1548; Pub. L. 96–574, § 11, Dec. 22, 1980, 94 Stat. 3350; Pub. L. 103–349, § 4, Oct. 6, 1994, 108 Stat. 3139.) Editorial Notes AMENDMENTS 1994—Par. (1). Pub. L. 103–349, § 4(1), inserted at end ‘‘The variety shall be named in accordance with regula- tions issued by the Secretary.’’ Par. (2). Pub. L. 103–349, § 4(2), in first sentence sub- stituted ‘‘distinctiveness, uniformity, and stability’’ for ‘‘novelty’’. Par. (3). Pub. L. 103–349, § 4(4), added par. (3). Former par. (3) redesignated (4). Par. (4). Pub. L. 103–349, § 4(3), (5), redesignated par. (3) as (4) and inserted ‘‘(including any propagating ma- terial)’’ after ‘‘basic seed’’. Former par. (4) redesignated (5). Par. (5). Pub. L. 103–349, § 4(3), redesignated par. (4) as (5). 1980—Par. (3). Pub. L. 96–574 struck out provisions re- lating to adding of declaration by amendment. Statutory Notes and Related Subsidiaries EFFECTIVE 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. § 2423. Joint breeders (a) When two or more persons are the breeders, one person (or the successor of the person) may apply, naming the others. (b) The Secretary, after such notice as the Secretary may prescribe, may issue a certificate of plant variety protection to the applicant and such of the other breeders (or their successors in interest) as may have subsequently joined in the application. (Pub. L. 91–577, title II, § 53, Dec. 24, 1970, 84 Stat. 1548; Pub. L. 103–349, § 13(g), Oct. 6, 1994, 108 Stat. 3143.) Editorial Notes AMENDMENTS 1994—Subsec. (a). Pub. L. 103–349, § 13(g)(1), sub- stituted ‘‘one person (or the successor of the person)’’ for ‘‘one (or his successor)’’. Subsec. (b). Pub. L. 103–349, § 13(g)(2), substituted ‘‘the Secretary’’ for ‘‘he’’ before ‘‘may’’. Statutory Notes and Related Subsidiaries EFFECTIVE 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. § 2424. Death or incapacity of breeder Legal representatives of deceased breeders and of those under legal incapacity may make appli- cation for plant variety protection upon compli- ance with the requirements and on the same terms and conditions applicable to the breeder or the successor in interest of the breeder. (Pub. L. 91–577, title II, § 54, Dec. 24, 1970, 84 Stat. 1548; Pub. L. 103–349, § 13(h), Oct. 6, 1994, 108 Stat. 3143.) Editorial Notes AMENDMENTS 1994—Pub. L. 103–349 substituted ‘‘the successor in in- terest of the breeder’’ for ‘‘his successor in interest’’. Statutory Notes and Related Subsidiaries EFFECTIVE 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. § 2425. Benefit of earlier filing date (a)(1) An application for a certificate of plant variety protection filed in this country based on