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Page 4. 



In order to obtain complete information on whether foreign flower 

 growers ignore U.S. patents or pay lower royalty payments, the U.S. 

 Trade Representative, in conjunction with the U.S. Department of 

 Agriculture, shall issue a report within six months of 

 the effective date of the Act as specified in Section 13 that reviews, 

 inter alia . (1) fresh cut flower exporting countries that recognize 

 U.S. breeders' rights to patented plant varieties under domestic law, 

 (2) fresh cut flower exporting countries that adhere to bilateral or 

 multilateral treaties recognizing patent protection of plant varieties, 

 and (3) royalty payments made by U.S. growers as compared to 

 foreign fresh cut flower growers/exporters. Based on that report, 

 the U.S. Trade Representative shall consider whether action 

 pursuant to 19 U.S.C. § 2411(a) is appropriate. 



A USTR report is clearly consistent with Article 2 of the UPOV which requires 

 all contracting parties to "grant and protect breeders' rights." Further, according to Article 

 14 of the UPOV and Section 2541 of the PVPA, infringement of plant variety patents can 

 include importation of the protected variety. As explained above, it is almost impossible 

 for patentholders to determine whether foreign growers are producing more fresh cut 

 flowers under a patent than royalties collected. Because of the difficulty in collecting 

 information regarding patent violations, there is little threat of action under 19 U.S.C. § 

 1337. For this reason, breeders of flowering varieties have limited recourse to legal 

 remedies. 



Consistent with its commitment to "provide for appropriate legal remedies for 

 the effective enforcement of breeders' rights" under Article 30 of the UPOV, Congress 

 should require country of origin marking for fresh cut flowers. Congress removed three 

 types of merchandise from the J-List in the Trade and Tariff Act of 1984 to address a 

 similar problem: (1) certain pipe and fittings, (2) compressed gas cylinders, and (3) certain 

 manhole rings or frames, covers, and assemblies thereof. 19 U.S.C. §§ 1304(c), (d), & (e). 

 The legislative history of that amendment indicates that significant evasion of the law 

 prompted Congress to amend the scope of the J-List. 1984 U.S. Code Cong. & Admin. 

 News 4941-42. For the same reasons, Congress should specifically remove flowers from 

 the J-List and impose more specific marking requirements, such as tagging every sixth 

 stem. The following amendment to 7 U.S.C. § 2567 of the PVPA (requiring marking of the 

 protected variety) is suggested: 



