AUTHORITY: The provisions of this Part 180 issued pursuant secs. 6, 22, 23, 26, 31, 42(b), 43, 56, 57, 91(c), 84 Stat. 1542; 7 U.S.C. 2326, 2352, 2353, 2356, 2371, 2402(b), 2403, 2426, 2427, 2501(c); 29 F.R. 16210, as amended, 37 F.R. 6327, 6505.

SOURCE: The provisions of this Part 180 appear at 37 F.R. 23141, Oct. 28, 1972, unless otherwise noted.

(a) Construction of words. Words used in the singular form in this part shall be deemed to import the plural, and vice versa, as the case may be.

(b) Definitions. The definitions of terms contained in the Act shall apply to such terms when used in this part. In addition, for the purposes of this part, the following terms shall be construed, respectively, to have the following meanings:

(1) "Abandoned application” means an application which has not been pursued to completion within the time allowed by the Office or has been voluntarily abandoned.

(2) "Act" means the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).

(3) "Administrator" means the Administrator of the Agricultural Marketing Service of the U.S. Department of Agriculture or any other officer or employee of the Department of Agriculture to whom authority has heretofore been delegated or to whom authority may hereafter be delegated, to act in his stead.

(4) "Applicant" means the person who applied for a certificate of plant variety protection.

(5) "Application" means an application for plant variety protection under the Act.

(6) "Assignee" means a person to whom an owner assigns his rights in whole or in part.

(7) "Board" means the Plant Variety Protection Board appointed by the Secretary.

(8) "Certificate" means a certificate of plant variety protection issued under the Act by the Office.

(9) "Certified seed" means seed which has been determined by an official seed certifying agency to conform to standards of genetic purity and identity as to variety, which standards have been approved by the Secretary.

(10) "Commissioner" means the Examiner in Chief of the Office.

(11) "Decision and order" includes the Secretary's findings of fact; conclusions with respect to all material issues of fact and law as well as the reasons or basis therefor; and order.

(12) "Examiner" means an employee of the Plant Variety Protection Office who determines whether a certificate is entitled to be issued. The term shall, in all cases, include the Commissioner.

(13) "Foreign application" means an application for plant variety protection filed in a foreign country.

(14) "Hearing Clerk" means the Hearing Clerk, U.S. Department of Agriculture, Washington, D.C.

(15) "Hearing Officer" means an Administrative Law Judge, U.S. Department of Agriculture, or other officer or employee of the Department of Agriculture, duly assigned to preside at a hearing held pursuant to the rules of this part.

(16) "Hybrid" shall be defined as set forth in the regulations under the Federal Seed Act (§ 201.2 (y) of this chapter).

(17) "Office" or "Plant Variety Protection Office" means the Plant Variety Protection Office, Grain Division, Agricultural Marketing Service, U.S. Department of Agriculture.

(18) "Official Journal” means the "Official Journal of the Plant Variety Protection Office."

(19) "Owner" means a breeder who developed or discovered a variety for which plant variety protection may be applied for under the Act or a person to

whom the rights to such variety have been assigned or transferred.

(20) "Person" means an individual, partnership, corporation, association, Government agency, or other business or governmental entity.

(21) "Secretary" means the Secretary of Agriculture of the United States or any other officer or employee of the U.S. Department of Agriculture to whom authority has heretofore been delegated or to whom authority may hereafter be delegated to act in his stead.

(22) "Seed certifying agency" shall be defined as set forth in the Federal Seed Act (53 Stat. 1275).

(23) "Sale for other than seed purposes" means the transfer of title to and possession of the seed by the owner thereof to a grower or other person for reproduction for the owner, for testing, or for experimental use, and not for commercial sale of the seed or the reproduced seed for planting purposes.

ADMINISTRATION

§ 180.2 Plant Variety Protection Board.

(a) The Plant Variety Protection Board shall consist of 14 members appointed for a 2-year term. The Board shall be constituted every 2 years and shall consist of individuals who are experts in various areas of varietal development. The membership of the Board, which shall include farmer representation, shall be drawn approximately equally from the private or seed industry sector and from the sector of Government or the public. No member shall be eligible to act on any matter involving any appeal or questions under section 44 of the Act in which he or his employer has a direct financial interest.

(b) The functions of the Board are to: (1) Advise the Secretary concerning adoption of rules and regulations to facilitate the proper administration of the Act, (2) make advisory decisions on all appeals from the examiner or Commissioner, (3) advise the Secretary on the declaration of a protected variety open to use in the public interest, and (4) advise the Secretary on any other matters under the regulations in this part.

(c) The proceedings of the Board shall be conducted in accordance with Executive Order No. 11007 dated February 26, 1962, Administrative Regulations of the U.S. Department of Agriculture, Agricultural Marketing Service Instruction No. 109-1, and such additional operating pro

cedures as are adopted by the members of the Board.

THE APPLICATION

§ 180.5 General requirements.

(a) Protection under this Act shall be limited to nationals of the United States, except where this limitation would violate a treaty, and except that nationals of a foreign State shall be entitled to so much of the protection afforded under this Act as is afforded by said foreign State to nationals of the United States for the same genus and species.

(1) Certificates of plant variety protection issued to nationals of the Netherlands and the Federal Republic of Germany shall entitle such nationals to the same protection afforded nationals of the United States under the Plant Variety Protection Act.

(2) Certificates of plant variety protection issued to nationals of the United Kingdom shall (i) expire in 15 years, or less, pursuant to sections 42(b) and 83 (b) of the Plant Variety Protection Act, from the dates of issue of the certificates in the United States when issued for barley, Hordeum vulgare L.; oat, Avena spp.; lettuce, Lactuca sativa L.; wheat, Triticum spp.; bean, Phaseolus vulgaris L.; and delphinium, Delphinium spp.; (ii) expire in 17 years, or less, pursuant to sections 42(b) and 83(b) of the Plant Variety Protection Act, from the dates of issue of the certificates in the United States when issued for other eligible genus and species; and (iii) not exclude others from offering the protected novel varieties for sale.

(3) A certificate of plant variety protection issued to a national of the Republic of South Africa shall (i) expire in 15 years or less, pursuant to sections 42 (b) and 83(b) of the Plant Variety Protection Act, from the date of issue of the certificate in the United States (ii) be applicable only for seed-reproduced species considered of economic importance and protectable in the Republic of South Africa (a list of such species may be obtained by writing to the Plant Variety Protection Office, Grain Division, Agricultural Marketing Service, U.S. Department of Agriculture, 6525 Belcrest Road, Hyattsville, Maryland 20782 or to the Division of Seed Control, Hamilton Street, Private Bag 179, Pretoria, South Africa 0001) and (iii) not include a specification that the variety is to be sold by

variety name only as a class of certified seed.

(b) Applications for certificates shall be made to the Plant Variety Protection Office. An application shall consist of:

(1) A completed application form, except that the section specifying that seed of the variety shall be sold by variety name only as a class of certified seed need not be completed at the time of application.

(2) A completed set of the exhibits as specified in the application form, unless the examiner waives submission of certain exhibits as unnecessary based on other claims and evidence presented in connection with the application.

(3) Language and legibility:

(i) Applications and exhibits must be in the English language and legibly written, typed, or printed.

(ii) Any interlineation, erasure, cancellation, or other alteration must be made in permanent ink before the application is signed and shall be clearly initialed and dated by the applicant to indicate knowledge of such fact at the time of signing.

(c) Application and exhibit forms shall be issued by the Commissioner after consultation with the Board. (Copies of the forms may be obtained from the Plant Variety Protection Office, Grain Division, Agricultural Marketing Service, U.S. Department of Agriculture, 6525 Belcrest Road, Hyattsville, MD 20782.)

(d) Effective as of the effective date of these regulations and rules of practice, the signature of the applicant or his agent or attorney on any affidavit or other statement filed pursuant to these regulations and rules constitutes a certification by him that no information is known to him which is inconsistent with that relied on in the affidavit or statement, which would tend to give an impression different from that conveyed by the affidavit or statement, or the failure to disclose which makes that or any affidavit or statement already filed in the course of the proceeding misleading when considered as a whole.

[37 FR 23141, Oct. 28, 1972, as amended at 39 FR 785, Jan. 3, 1974; 40 FR 42851, Sept. 17, 1975]

§ 180.6 Application for certificate.

(a) An application for a plant variety protection certificate shall be signed by or on behalf of the applicant.

(b) The application shall state the full name, including the full first name

and the middle initial or name, if any, and the capacity of the person executing it.

§ 180.7 Statement of applicant.

(a) The applicant, by signing a completed application, states in accordance with section 42 of the Plant Variety Protection Act that (1) he believes himself, or his privies, to be the original and first breeder or discoverer of the variety for which he solicits a certificate; (2) he, or his privies, has sexually reproduced the variety; (3) he does not know and does not believe that the variety was ever a public variety before his, or his privies, date of determination; (4) he is a sole or joint owner of the variety; (5) the variety was not a public variety more than 1 year prior to the effective filing date of the application; (6) before the date of determination of the variety by the owner, or his privies, or more than 1 year before the effective filing date of the application, the variety was not effectively available to workers in this country and adequately described by a publication reasonably deemed a part of the public technical knowledge in this country, which description must include a disclosure of the principal characteristics by which the variety is distinguished; (7) he or his privies have not filed an application for the protection of the variety in a foreign country more than 1 year prior to the effective filing date of the application filed in the United States, except that this 1-year may be extended by the Commissioner for an additional period equal to the time interval between the date an application for rights on the same variety was first filed in a foreign country and the date rights were first granted on the variety in the foreign country because of official grow-out tests required by such foreign country: Provided, however, That the total period allowed does not exceed 4 years. The term of protection in such case shall be reduced to the nearest full year by an amount equal to the additional time that the 1-year period for filing is extended.

(b) If any application for protection on the same variety has been filed or granted in a foreign country, either by the applicant or his privies, the applicant shall state the names of the countries in which such application(s) were filed or protection granted and shall give the day, month, and year of filing

(a) The applicant may be required by the examiner to furnish representative specimens of the variety, or its flower, fruit, or seeds, in a quantity and at a specified stage of growth, as may be necessary to verify the statements in the application. Such specimens shall be packed and forwarded in conformity with instructions furnished by the examiner. If the applicant requests the examiner to inspect plants in the field before a final decision is made, all such inspection costs shall be borne by the applicant by payment of fees sufficient to reimburse the Office of all costs, including travel, per diem or subsistence, and salary.

(b) Plant specimens submitted in support of an application shall not be removed from the Office except by an employee of the Office or other person authorized by the Secretary.

(c) Plant specimens submitted to the Office shall, except as provided below, and upon request, be returned to the applicant at his expense after the specimens have served their intended purpose. The Commissioner, upon a finding of good cause, may require that certain specimens be retained in the Office for indefinite periods of time. Specimens which are not returned or not retained as provided above shall be destroyed. § 180.9 Drawings and photographs.

(a) Drawings or photographs submitted with an application shall disclose the distinctive characteristics of the variety.

(b) Drawings or photographs shall be in color when color is a distinguishing characteristic of the variety and the color shall be described by use of Nickerson's or other recognized color chart.

(c) Drawings should be sent flat, or may be sent in a suitable mailing tube in accordance with instructions furnished by the Commissioner.

(d) Drawings or photographs submitted with an application shall be retained by the Office as part of the application file.

(a) An application if materially complete when initially submitted shall be accepted and filed to await examination.

(b) If any part of an application is so incomplete, or so defective that it cannot be handled as a completed application for examination, as determined by the Commissioner, the applicant will be notified before the Office requests an examination fee. The application will be held a maximum of 6 months for completion. Applications not completed at the end of the prescribed period will be considered abandoned. The application fee in such cases will not be refunded. § 180.12 Number and filing date of application.

(a) Applications shall be numbered and dated in sequence in the order received in the Office. Applicants will be informed in writing as soon as practicable of the number and effective filing date of the application.

(b) An applicant may claim the benefit of the filing date of a prior foreign application in accordance with section 55 of the Act. A certified copy of the foreign application shall be filed upon request made by the examiner. If a foreign application is not in the English language, an English translation certified as accurate by a sworn or official translator shall be submitted with the application.

§ 180.13 When the owner is deceased or legally incapacitated.

In case of the death of the owner or if the owner is legally incapacitated, the legal representative (executor, administrator, or guardian) or heir or assignee of the deceased owner may sign as the applicant. If an applicant dies between the filing of his application and the granting of a certificate thereon, the certificate may be issued to the legal representative, heir, or assignee, upon proper intervention by him.

§ 180.14 Joint applicants.

(a) Joint owners shall file a joint application by signing as joint applicants.

(b) If an application for certificate is made by two or more persons as joint owners when they were not in fact joint owners, the application shall be amended prior to issuance of a certificate by filing a corrected application together with a written explanation signed by the original applicants. Such statement shall also be signed by the assignee, if any.

(c) If an application has been made by less than all the actual joint owners, the application shall be amended by filing a corrected application together with a written explanation signed by all of the joint owners. Such statement shall also be signed by the assignee, if any.

(d) If a joint owner refuses to join in an application or cannot be found after diligent effort, the remaining owner may file an application on behalf of himself and the missing owner. Such application shall be accompanied by a written explanation and shall state the last known address of the missing owner. Notice of the filing of the application shall be forwarded by the Office to the missing owner at his last known address. If such notice is returned to the Office undelivered, or if the address of the missing owner is unknown, notice of the filing of the application shall be published once in the Official Journal. Prior to the issuance of the certificate, a missing owner may join in an application by filing a written explanation. A certificate obtained by less than all of the joint owners under this paragraph conveys the same rights and privileges to said owners as though all of the original owners had joined in an application.

§ 180.15 Assigned novel varieties and

certificates.

In case the whole or a part interest in a variety is assigned, the application shall be made by the owner or one of the persons identified in § 180.13. However, the certificate may be issued to the assignee or jointly to the owner and the assignee when a part interest in a variety is assigned.

§ 180.16 Amendment by applicant.

An application may be amended before or after the first examination and action by the Office, after the second or subsequent examination or reconsideration as specified in § 180.107, or when and as specifically required by the examiner. Such amendment may include a specification that seed of the variety be sold by variety name only as a class of certi

fled seed, if not previously specified or if previously declined. Once an affirmative specification is made, no amendment to reverse such a specification will be permitted unless the variety has not been sold and labeled or publication made in any manner that the variety is to be sold by variety name only as a class of certified seed.

§ 180.17 Papers of completed applica tion to be retained.

The papers submitted with a completed application shall be retained by the Office except as provided in § 180.23 (c). After issuance of a certificate of protection the Office will furnish copies of the application and related papers to any person upon payment of the specified fee.

§ 180.18 Applications handled in confi. dence.

(a) Pending applications shall be handled in confidence. Except as provided below, no information may be given by the Office respecting the filing of an application, the pendency of any particular application, or the subject matter of any particular application, nor will access be given to, or copies furnished of, any pending application or papers relating thereto, without written authority of the applicant, or his assignee or attorney or agent. Exceptions to the above may be made by the Commissioner in accordance with 5 U.S.C. 552 and § 1.4 of this title and upon a finding that such action is necessary to the proper conduct of the affairs of the Office, or to carry out the provisions of any Act of Congress or as provided in sections 56 or 57 of the Act and § 180.19.

(b) Abandoned applications shall not be open to public inspection, except that if an abandoned application is directly referred to in an issued certificate, and is available, it may be inspected or copies obtained by any person on written request, and with written authority received from the applicant. Abandoned applications shall not be returned.

(c) Decisions of the Commissioner on abandoned applications not otherwise open to public inspection (see paragraph (b) of this section) may be published or made available for publication at the Commissioner's discretion. When it is proposed to release such a decision, the applicant shall be notified directly or through the attorney or agent of record