others, and escaping infringement charges under present law while benefiting from 

 the desirable characteristics of the initial variety. This concept redistributes the 

 right to profit among the owners of varieties, recognizing those who discovered and 

 developed the variety in the first place. It does not extend the rights of owners to 

 the detriment of farmers and others. 



Other changes necessary to bring the PVPA into conformance with the 1991 Con- 

 vention are more limited in scope and I will now discuss them briefly. 



The use of date of determination would be replaced by the use of date of filing for 

 protection as the basis for determining eligibility for protection. The method of de- 

 ciding when the filing in another country makes a variety a matter of common 

 knowledge would be established. As the filing date will be a matter of record, the 

 provisions in the current statute for adversarial proceedings relating to date of de- 

 termination are superfluous and will be removed by these amendments. A provision 

 would be made for determining eligibility for protection when applicants have the 

 same filing date for varieties which cannot be clearly distinguished. 



Eligibility for protection would also be extended to first generation hybrid varie- 

 ties. This change would provide a certain amount of additional protection for the 

 breeder. 



Provision is made for protected varieties to be sold by variety name only, for as 

 long as they exist, even after the term of protection has expired. Breeders would no 

 longer be able to market seed of a protected variety labeled as "variety not stated." 

 S. 1406 also provides for the cancellation of protection if owners do not cooperate in 

 providing an acceptable variety name. 



The list of actions which constitute infringement would be expanded by S. 1406, 

 namely, by adding conditioning a protected variety for purposes of propagation, and 

 stocking a variety for any of the purposes which would constitute infringement. 

 These changes would enable owners to take action at a much earlier stage, thereby 

 minimizing the risk of damage to their interests. The provision against conditioning 

 of a variety for planting would not apply to the conditioning of saved seed by farm- 

 ers for planting on their own holdings. 



Infringement would also be extended to include acts involving harvested material 

 if such material is obtained through unauthorized use of propagating material 

 (seeds). 



Also, a number of terms and rules of construction would be changed or added, so 

 that the PVPA would utilize the same terms and concepts as used throughout the 

 member states which are party to the convention. 



Under S. 1406, the period of protection would be increased from 18 to 20 years for 

 most crops, and to 25 years for trees and vines. All countries ratifying the 1991 con- 

 vention would grant protection for these same periods. 



Finally, Mr. Chairman, the provisions of the amendments would not take effect 

 until 6 months after enactment. Moreover, the provisions of S. 1406 would apply 

 only to varieties protected after that 6 months. 



CONCLUSION 



Mr. Chairman, we believe that S. 1406, if enacted into law, would enable the 

 United States to ratify the 1991 act of the UPOV Convention, and thereby continue 

 to play its leadership role as a proponent of effective protection of intellectual prop- 

 erty. At the same time, these changes in the PVPA will greatly encourage the de- 

 velopment of new varieties of plants, to the benefit of our farmers, the seed indus- 

 try, and the American consumer. 



We realize that there may be other ways to manage the transition from the 

 present statute. We also recognize the need for improvements in the PVPA which 

 are not related to achieving consistency with the 1991 UPOV Convention. While the 

 purpose of my testimony today is to indicate our support for S. 1406, we are open to 

 other beneficial modifications to the PVPA, provided those modifications are con- 

 sistent with the 1991 act of the UPOV Convention. 



This concludes my statement. My associates and I will be pleased to respond to 

 any questions the committee may have. 



Senator Kerrey. Am I correct, Dr. Clayton, that you have essen- 

 tially offered testimony for all three? 



Dr. Clayton. That is correct. 



Senator Kerrey. I think what I will do is call the next four wit- 

 nesses who are here from seed companies, and if you don't mind 



