45 



Any otherwise protectable variety which does not express 

 at least 90 percent of the essential characteristics of the 

 initial variety, or from a variety that is predominately de- 

 rived from the initial variety, not including the differences 

 which result from the act of derivation, satisfies the re- 

 quirements for minimum genetic distance such that it is 

 not an essentially derived variety. 



Essential characteristics are defined as heritable, readily 

 identifiable traits that contribute to economic value. Such 

 traits may be qualitative or quantitative. Trivial or purely 

 cosmetic traits which have no economic value are not con- 

 sidered essential characteristics. 



These amendments provide the refinement of the UPOV defini- 

 tion of essentially derived needed to remove its inherent ambiguity. 

 Our proposed amendments provide for more clarity of the rights of 

 the owner of the initial variety and define succinctly the latitude 

 that a second generation breeder has in making refinements in a 

 protected variety and his ability to receive potential economic ben- 

 efits for such efforts. Nevertheless, these amendments provide a 

 substantial strengthening of the protection afforded to the initial 

 breeder. 



As currently drafted, S. 1406 could create difficulties for farmers 

 desiring to have seed conditioned by a custom conditioner. In order 

 to constitute a violation of the act, we believe a linkage needs to be 

 established between conditioning of seed and direct knowledge of 

 the intended use of the seed for propagation in violation of the act. 



We would suggest that Section 8, Infringement of Plant Variety 

 Protection, Subsection 7, be amended as follows: 



(7) condition the variety with knowledge that the variety is 

 being conditioned for commercial seed sale or propagation 

 for commercial seed sale. 



Farm Bureau policy states that farmers should be able to save 

 seed and sell incidental amounts of that saved seed. Neither the 

 UPOV or S. 1406 allow that range of options. We would suggest 

 that these important options can be maintained for farmers with- 

 out creating problems for breeders of protected varieties. A balance 

 of interests can be achieved by establishing a reasonable definition 

 of incidental sales. 



I should state from the outset that it is not Farm Bureau's inten- 

 tion to provide any protection to those individuals whose activities 

 are clearly designed to compete with the sale of protected varieties. 

 Farmers should be allowed to save an adequate amount of seed to 

 plant their holdings twice. This allows for replanting in the event 

 of failed germination. 



If the farmer does not utilize the full amount of his saved seed 

 on his holdings, he should be allowed to sell the remaining condi- 

 tioned seed, since it is often not marketable as grain. A total prohi- 

 bition on such sales could result in farmers having to try to store 

 small quantities of treated seed for long periods of time and could 

 lead to contamination of other grain and feed sources. 



A total ban on sales could also create a situation in which farm- 

 ers would have to destroy or dispose of such seed as hazardous 



