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.
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.
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 initial variety, backcrossing, transformation by genetic engineering, or other method.
The term “kind” means one or more related species or subspecies singly or collectively known by one common name, such as soybean, flax, or radish.
The term “seed”, with respect to a tuber propagated variety, means the tuber or the part of the tuber used for propagation.
(7) Sexually reproduced
The term “sexually reproduced” includes any production of a variety by seed, but does not include the production of a variety by tuber propagation.
(8) Tuber propagated
The term “tuber propagated” means propagated by a tuber or a part of a tuber.
(9) United States
The terms “United States” and “this country” mean the United States, the territories and possessions of the United States, and the Commonwealth of Puerto Rico.
The term “variety” means a plant grouping within a single botanical taxon of the lowest known rank, that, without regard to whether the conditions for plant variety protection are fully met, can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one characteristic and considered as a unit with regard to the suitability of the plant grouping for being propagated unchanged. A variety may be represented by seed, transplants, plants, tubers, tissue culture plantlets, and other matter.
(b) Rules of construction
Terms Used In 7 USC 2401
- breeder: means the person who directs the final breeding creating a variety or who discovers and develops a variety. See 7 USC 2401
- essentially derived variety: means a variety that&mdash. See 7 USC 2401
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- individual: shall include every infant member of the species homo sapiens who is born alive at any stage of development. See 1 USC 8
- tuber propagated: means propagated by a tuber or a part of a tuber. See 7 USC 2401
- variety: means a plant grouping within a single botanical taxon of the lowest known rank, that, without regard to whether the conditions for plant variety protection are fully met, can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one characteristic and considered as a unit with regard to the suitability of the plant grouping for being propagated unchanged. See 7 USC 2401
For the purposes of this chapter:
(1) Sale or disposition for nonreproductive purposes
The sale or disposition, for other than reproductive purposes, of harvested material produced 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 purposes
The sale or disposition of a variety for reproductive purposes shall not be considered to be a sale or disposition for the purposes of exploitation of the variety if the sale or disposition is done as an integral part of a program of experimentation or testing to ascertain the characteristics of the variety, or to increase the variety on behalf of the breeder or the successor 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 harvested 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 protection or for the entering of a variety in an official register of varieties, in any country, shall be considered to render the variety a matter of common knowledge from the date of the application, 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.
The distinctness of one variety from another may be based on one or more identifiable morphological, physiological, or other characteristics (including any characteristics evidenced by processing or product characteristics, such as milling and baking characteristics in the case of wheat) with respect to which a difference in genealogy may contribute evidence.
(6) Publicly known varieties
(A) In general
A variety that is adequately described by a publication reasonably considered to be a part of the public technical knowledge in the United States shall be considered to be publicly known and a matter of common knowledge.
A description that meets the requirements of subparagraph (A) shall include a disclosure of the principal characteristics by which a variety is distinguished.
(C) Other means
A variety may become publicly known and a matter of common knowledge by other means.