180.210 Preliminary statement on novel variety developed in a foreign country. 180.211 Statements sealed before filing. 180.212 Correction of statement on motion. 180.213 Failure to file statements. 180.214 Access to preliminary statements. 180.215 Dissolution at the request of Com

missioner.

180.216 Concession; abandonment. 180.217 Affidavits and exhibits.

180.218 Matters considered in determining priority.

180.219 Recommendation by Commission

er.

180.220 Decision by Commissioner.

180.221 Status of claims of defeated applicant.

180.222 Second priority contest.

APPEAL TO THE SECRETARY

180.300 Petition to the Secretary. 180.301 Commissioner's answer. 180.302 Decision by the Secretary. 180.303 Action following decision.

GENERAL PROCEDURES IN PRIORITY PROTEST, OR APPEAL PROCEEDINGS

180.400 180.401 Miscellaneous provisions. 180.402 Service of papers. 180.403 Manner of service.

Extensions of time.

REVIEW OF DECISIONS BY COURT

180.500 Appeal to U.S. courts.

CEASE AND DESIST PROCEEDINGS

180.600 Rules of practice.

PUBLIC USE DECLARATION 180.700 Public interest in wide usage.

PUBLICATION

180.800 Publication of public variety de

scriptions.

AUTHORITY: 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 FR 16210, as amended, 37 FR 6327, 6505; U.S.C. 2371.

SOURCE: 37 FR 23141, Oct. 28, 1972, unless otherwise noted.

DEFINITIONS

§ 180.1 Meaning of words.

(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, Livestock Division, AMS, USDA.

(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.

(7 U.S.C. 2326, 2371, 2372)

[37 FR 23141, Oct. 28, 1972, as amended at 49 FR 48677, Dec. 14, 1984]

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

(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 the Federal Advisory Committee Act (Pub. L. 92-463), OMB Circular A-63, and Administrative Regulations of the U.S. Department of Agriculture (7 CFR Part 25) and such additional operating procedures as are adopted by members of the Board.

[37 FR 23141, Oct. 28, 1972, as amended at 42 FR 9157, Feb. 15, 1977]

THE APPLICATION

§ 180.5 General requirements.

(a) Protection under the Act shall be afforded only as follows:

(1) Nationals and residents of the United States shall be eligible to receive all of the protection under the Act.

(2) Nationals and residents of Member States of the International Union for the Protection of New Varieties of Plants shall be eligible to receive the same protection under the Act as is provided nationals of the United States.

(3) Persons who are not entitled to protection under paragraph (a) (1) or

(2) of this section and who are nationals of a foreign state which is not a member of the International Union for the Protection of New Varieties of Plants shall be entitled to only so much of the protection provided under the Act as is afforded by such foreign state to nationals of the United States for the same genus and species under the laws of such foreign state in effect at the time that the application for protection under the Act is filed, except where further protection under the Act must be provided in order to avoid the violation of a treaty to which the United States is a party.

(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.

(4) For the purpose of determining the extent of reciprocity of the protection to be provided under the Act, persons filing an application for plant variety protection in the United States under the provisions of paragraph (a)(3) of this section shall, upon request1 furnish the Plant Variety Pro

1 Copies and translations of foreign laws and regulations will be requested only if they are not in the files of the Plant Variety Protection Office. Applicants may learn whether such a request will be made by writing to the address given in paragraph

tection Office with a copy of the current plant variety protection laws and regulations for the country of which the applicant is a national and an accurate English translation of such laws and regulations.

(c) Application and exhibit forms shall be issued by the Commissioner. (Copies of the forms may be obtained from the Plant Variety Protection Office, Livestock Division, AMS, USDA, Room 500, National Agricultural Library Building, Beltsville, Maryland 20705.)

(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 an 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.

(7 U.S.C. 2326, 2371, 2372)

[37 FR 23141, Oct. 28, 1972, as amended at 48 FR 30940, July 6, 1983; 49 FR 48677, Dec. 14, 1984]

§ 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.

(c) The fees for (1) filing application, and (2) search or examination, shall be submitted with the application in accordance with through §§ 180.175 180.178.

(d) The applicant shall submit with the application at least 2,500 seeds of the viable basic seed required to reproduce the variety.

(c) of this section or by calling (301) 3442518.

[37 FR 23141, Oct. 28, 1972, as amended at 42 FR 9157, Feb. 15, 1977]

§ 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 offered for sale or marketed the variety, with the agreement of the breeder, in a foreign state for longer than 6 years in the case of vines, forest trees, fruit trees, and ornamental trees, including, in each case, their rootstocks, or for longer than 4 years in the case of all other plants.

(b) If the same variety has been marketed with the agreement of either the applicant or his privies, the applicant shall state the names of the countries in which the variety was marketed and give the day, month, and year of first marketing in each country.

(c) When an applicant files an application, cross-references to other related applications may be made, when appropriate.

[37 FR 23141, Oct. 28, 1972, as amended at 42 FR 9157, Feb. 15, 1977; 48 FR 30940, July 6, 1983]

§ 180.8 Specimen requirements.

(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.