Plant Variety Protection Act of 1970 - Exemptions

Exemptions

Unlike the Patent Act of 1952, the PVPA contains three exemptions that significantly limit the scope of the plant breeder's exclusive right. First, the PVPA's provision safeguarding the "public interest in wide usage" allows the United States Department of Agriculture to declare an otherwise protected variety open on the basis of equitable remuneration to the owner, upon a finding that no more than two years of compulsory licensing of a protected variety is necessary in order to insure an adequate supply of fiber, food, or feed and that the owner is unwilling or unable to meet public demand at a price which may reasonably be deemed fair. Second, the PVPA's "research exemption" declares that the use and reproduction of a protected variety for plant breeding or other bona fide research shall not constitute infringement.

The PVPA's third exemption permits a farmer to save seed from protected varieties and to use such saved seed in the production of a crop without infringement. Prior to 1994, this exemption also allowed farmers to sell such saved seed to others without infringement. Asgrow Seed Company sued Denny and Becky Winterboer over the scope of this exemption. After Asgrow won at District Court and then lost at the Court of Appeals. The scope of the exemption to sell seeds was confirmed and defined by the 1995 Supreme Court decision in Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995). In 1994, legislation to bring the PVPA into compliance with the 1991 Act of the UPOV Convention also included amendments that eliminated the exemption for sales, but continued to allow farmers to save and replant seed on their own farms without infringement.