Field of Barley

PVPO Frequently Asked Questions

1. What is ePVP and how do I use it?
The ePVP System is an electronic system used by PVPO customers to submit applications; and by the PVPO to review and examine applications.  Specifically, the ePVP system is a secure way for applicants to 1) file new plant variety protection applications, 2) amend existing applications, 3) pay fees, 4) check the status of an application, and 5) correspond directly with PVPO staff.  The PVPO staff use the system to 1) log incoming applications; 2) collect fees; 3) examine and confirm that a variety is new, distinct, uniform, and stable; 4) correspond with applicants regarding application questions; and 5) issue certificates of protection.

2. Who may apply for plant variety protection?
Anyone who is the breeder of a unique variety of a sexually reproduced or tuber-propagated plant. The applicant may be an individual, a public institution, or a corporation.

3. How do I change owner information?
Any change to an owner’s or representative’s information, such as name, address, etc. can be done by completing the Recordation Form (pdf), accompanied by a fee of $41 to be paid by credit card or a check made payable to the "Treasurer of the United States."

4. What if I've already sold seed of my variety but would still like to have it protected?
Your variety is still eligible for protection, as long as you have not sold seed of the variety, offered or advertised it for sale for more than 1 year in the United States before your application is filed at PVPO.  You have 4 years of eligibility if the variety has only been sold in a foreign country and 6 years for a tree or vine sold anywhere.  Sales that occurred in order to increase the variety during seed production or as part of a trialing program might not be considered as a sale for the purpose of PVP.

5. How do I obtain copies of Plant Variety Protection (PVP) certificates?
Copies of issued PVP certificates are available free on the Issued Certificate webpage or alternatively paper copies can be obtained by submitting a request to the PVPO including the information to be copied and the copy fee payment.

6. How do I find out the status of an application?
Information about applications is available at Application Status webpage.

7. What method of payment is available for PVPO fees?
Fees can be paid by 1) using the ePVP system; 2) major credit card such as VISA, American Express, Discover, or Master Card using our Credit Card Payment Form (pdf) which is emailed, faxed, or mailed to the PVPO; or 3) check or money order payable to the "Treasurer of the United States" which is mailed to the PVPO.

8. Do I need to send a seed sample?
Yes, an applicant needs to provide a seed sample (including any parents needed to produce a hybrid variety) by following the instructions on the seed deposit form. The seed sample must be deposited within 3 months after the filing date and must consist of 3,000 untreated seeds that germinate at 85 percent or greater. The tissue culture sample for tubers will be requested by the PVPO prior to the issuance of the Certificate with the procedures and costs explained at that time.

9. What do you do with the seeds? Where are they kept?
The seed sample serves as a voucher specimen for PVPO's use should a question ever arise about the validity of the description. The sample is sent to the National Center for Genetic Resources Preservation (NCGRP) in Ft. Collins, Colorado. The memorandum of understanding between PVPO and NCGRP states that these seed samples will be kept separate from the NCGRP general collection during the term of PVPO protection. When received by NCGRP, their staff count the seeds in the sample and tests it for germination rate. If the sample is too small in size or too low in germination, they report that to the PVP Office. PVPO then requests seed replenishment. (This process is repeated periodically during the examination and protection periods. Therefore, we always need to know how to contact the applicant (or owner) in case seed replenishment is needed.) The seed sample is then placed in long-term storage, according to practices established by NCGRP.

10. Can others get samples of seeds?
Seed samples are not available to the public until plant variety protection on the variety expires for any reason.  At that point seed samples are transferred to NCGRP's general collection and can be requested by the public.

11. How can I request seed samples of expired PVP varieties?
You can find information on obtaining seeds of expired PVP varieties on the Germplasm Resources Information Network (GRIN) website. Expired PVP seed is maintained by GRIN and NCGRP.

12. Doesn't the research exemption indicate that I can get seeds of PVP protected varieties?
No. This does not mean that the seeds must be made available. It is up to the owner of the seeds to make seeds available or not usually by selling their variety publicly. The PVPO voucher specimen is not meant to be used to circumvent the owner's decisions. The research exemption specifies that if you have access to seeds and use the seeds for research or to breed a new variety, you are exempt from infringement charges.

13. Is there any penalty for claiming a variety is plant-variety protected when it is not?
Yes, there is a penalty after repeated violations. In Section 128 of the Plant Variety Protection Act (pdf) - a cease and desist order may be issued for claiming that a non-protected variety has PVP; followed by a fine if the order is violated. Please provide the PVPO with more information if you are aware of any alleged violations.
 
14. What actions are people prohibited from taking with a protected variety?
Without explicit consent from the owner, a person is prohibited from: selling, marketing, offering, delivering, consigning, exchanging, or exposing the variety for sale. In addition, a person is prohibited from soliciting an offer to buy the variety or transfer or possess it in any way. It is also illegal to import or export the variety, sexually multiply it, propagate it by tuber, use the variety in producing (as distinguished from developing) a hybrid, or condition the variety for the purpose of propagation.


15. Does this mean that the home gardener or farmer cannot propagate the seed of a protected variety and save it for future planting?
Under provisions of the PVP law and regulations growers and home gardeners can grow, and save seed for their own future planting, of any legally purchased protected variety they wish. However some protected varieties that are sold may have other limitations due to patents or contracts and may not be saved for future planting.  It is best to review the seed package label carefully for restrictions that may apply.

16. How is protection of the variety enforced?
The owner of a protected variety may bring civil action against persons infringing on his or her rights. The owner may ask a court to issue an injunction to prevent others from further violations. It is the owner of the protected variety who must bring suit in such cases. USDA will not take that action. In the USA, intellectual property protection for plants is provided through plant patents, plant variety protection, and utility patents. A plant variety can also receive double protection from both a utility patent and plant variety protection.

For additional information concerning utility and plant patents please contact the Patent and Trademark Office at their web site. Their web site provides answers to frequently asked questions concerning patents, guides to filing utility and plant patent applications, and access to their database.

17. What exemptions are there to the protection provided?
In general, there are two exemptions.
1. A research exemption to allow the use for breeding to develop a new variety; and
2. A right to save seed exemption to allow the saving of seed that was lawfully obtained from the breeder for the sole use of replanting on one’s land.