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farmer and to the breeder. Some opponents of S. 1406 maintain that American agri- 

 culture is not affected by incidental sales or those who sell protected varieties by 

 any definition or circumstance. To them, it is an issue that measures a "perceived" 

 ability to sustain potential lost sales of protected varieties. 



Like any business or area of intellectual property, protection and incentive go 

 hand in hand. Risk of capital and market share is real. An inability to protect runs 

 contrary to the spirit of the UPOV Convention and our ability as an industry to 

 foster a partnership with the farmer. Seed companies must know that their invest- 

 ment of time, research, and capital is truly protected, without exception. 



Section 12 — Transitional Provisions 



That is why, Mr. Chairman, I must take the time to articulate the ASTA's grave 

 concern over Section 12 as currently written. Section 12, as you will recall, stipu- 

 lates the transition period and the criteria necessary for implementation. 



ASTA is concerned with the provisions outlined in Section 12. ASTA members are 

 confused that there would essentially be two laws. It is our understanding that 

 anyone possessing a PVP certificate prior to the enactment of the amendments 

 would be covered under the 1970 PVP Act. Those individuals, companies, or univer- 

 sities granted certificates after enactment would enjoy the rights and privileges of 

 the new act. 



From the standpoint of the plant breeder, the message is clear: you get protection 

 for a new variety, but not an old. For the farmer, the message is equally clear: oper- 

 ate under the 1970 act for old varieties and then later the rules change and you 

 can't sell unless you gain permission of the owner of the protected variety. At best, 

 this is confusing and contradictory. A different label highlighting the issue date of a 

 PVP certificate will not adequately protect farmers or the seedsmen. Confusion and 

 uncertainty will not be an adequate defense for seedsmen or farmers. 



Changing a tradition and rewriting a law is never easy. In fact, it shouldn't be. As 

 an association, we question the ability, the wisdom, and the consequences of effec- 

 tively advocating two laws. Not only is this not in keeping with the spirit and intent 

 of the changes, it compromises the ability and penalizes members of the plant breed- 

 ing community who have developed popular and proven varieties that bear a PVP 

 issue certificate date prior to enactment of the new law. Moreover, farmers are sure 

 to be confused on what they can and cannot do. Because there are no mechanisms 

 in place to monitor and patrol seed sales, farmers and both public and private plant 

 breeders alike will be in an unenviable position of living with two laws and stand- 

 ards for an unacceptable period. 



When the ASTA began working on educating and informing everyone affected by 

 the 1991 UPOV Convention, we were heartened by the willingness and enthusiasm 

 to learn more and to better position American agriculture. After all, everyone 

 agrees that the key to our economic success hinges on agriculture. What we did not 

 find, however, was an ability to discuss openly and honestly the ramifications of 

 change. 



Mr. Chairman, the ASTA was concerned to see Section 12 in its present form. 

 While we remain most anxious to participate in the process, we must express our 

 frustration at this attempt to incorporate two sets of standards for recognizing and 

 rewarding incentive and ingenuity. Not only does Section 12 adversely affect the in- 

 dustry committed to supporting the farmer, it offers no real benefit for the farmer 

 who continues to expect new and improved varieties. This double standard penalizes 

 the legitimate farmer who depends on the best germplasm and makes his first deci- 

 sion each planting season by selecting proven seed. Additional labeling will not 

 counter the confusion and double standard for the producer or the seedsman. 



Yield and performance have always been the criteria a farmer uses in seed selec- 

 tion. Farmers know that many things go into that seed bag. Within that bag is con- 

 siderable research, marketing, development, and an expectation for performance. Is 

 it really the intention of this subcommittee to endorse a provision that bases protec- 

 tion on a PVP certificate issue date? 



Section 12 further erodes and compromises the ability of plant breeders to protect 

 their varieties far beyond the issue of the crop exemption. The issue of essentially 

 derived varieties and protecting new varieties internally is clearly at risk. In its 

 present form, Section 12 effectively serves to penalize those companies that are in 

 the development process. Simply "allowing" a company or individual to withdraw an 

 application for PVP protection does not address the situation. ASTA believes that in 

 its current form Section 12 compromises the ability of American seedsmen and all 

 plant breeders to effectively protect their incentives and seeks to limit the spirit of 

 development and promise of research. 



