On April 24, 2019, the United States Department of Agriculture (USDA) announced that the Plant Variety Protection Office (PVPO) would begin accepting applications of seed-propagated hemp for plant variety protection.
In the United States, there are three different ways to go about protecting intellectual property associated with plant varieties:
- Plant Variety Protection – available for seeds and tubers and issued by the PVPO;
- Plant Patents – available for asexually propagated plants except for edible tubers and issued by the United States Patent and Trademark Office (USPTO); and
- Utility Patents – available for genes, traits, methods, plant parts, or varieties and also issued by the USPTO.
The PVPO is responsible for implementing the Plant Variety Protection Act (PVPA) and will analyze an application to determine whether the variety specified is new, distinct, uniform and stable. Anyone who is the breeder of a unique variety of a sexually reproduced or tuber-propagated plant can apply for plant variety protection. The PVPO grants certificates to protect plant varieties for 20 years (25 years for vines and trees). According to the PVPO, “[c]ertificate owners have rights to exclude others from marketing and selling their varieties, manage the use of their varieties by other breeders, and enjoy legal protection of their work.”
The basic requirements for submitting an application under the PVPO program are as follows:
- Completion of all applicable forms;
- Payment of applicable fees ($4,382 to be paid with the application and $768 upon issuance of the certificate);
- A variety name that doesn’t conflict with an existing name for that crop; and
- Deposit of seeds or tissue cultures:
- 3,000 viable untreated seeds of the variety; additionally for hybrids, 3,000 seeds of each parent needed to reproduce the variety, or
- Live tissue culture samples (for potatoes) of the variety and payment of tissue culture fees. Ten (10) separate in-vitro plants (1 plant per tube) 4 to 6 weeks old, firmly rooted in one percent agar. It is recommended that plantlets be sent by an overnight delivery service to minimize the risk of damage.
Seed samples are important because they serve as a voucher specimen for PVPO’s use should a question arise about the validity of the subscription. According to PVPO, the samples are sent to the National Center for Genetic Resources Preservation (NCGRP) in Colorado. After analysis, seed samples are placed in long-term storage.
In addition to legalizing industrial hemp, the 2018 Farm Bill amended the U.S. Plant Variety Protection Act to add asexually propagated plants, previously not available under the Act. A revision of the U.S. PVPA will be needed and proposed rules are currently under development.
It is also important to note that there are penalties, including fines, for claiming that a variety is plant-variety protected when it is not.
While we are still waiting for the USDA to develop a regulatory framework for hemp under the 2018 Farm Bill, this update from the PVPO is an indication that we will be seeing regulatory changes of many kinds in the months to come.