97 



7. Q. Would the inclusion of "incidental sales" as proposed by 

 the American Farm Bureau Federation be in violation of the UPOV 

 agreement? 



A. Yes. The inclusion of "incidental sales" in the 

 provisions of S. 1406 would not conform to the 1991 Act of the 

 UPOV Convention which prohibits sale for reproductive purposes of 

 seed of protected varieties without permission of the owner. 

 However, S. 1406 will not diminish a farmer's privilege to sell 

 seed protected under current law. 



8. Q. The establishment of a category of "essentially derived 

 varieties" would enable the owner of an "initial" variety to 

 exclude the selling or marketing of varieties that are 

 essentially derived from that initial variety. Some concern has 

 been expressed that the essentially derived category will be too 

 broadly defined. Can essential characteristics be defined? Can 

 they be measured? 



A. The question of essential characteristics may vary from 

 species to species and even from variety to variety. 

 Consequently such characteristics can neither be defined on a 

 comprehensive scale, nor measured. Ultimately, this question may 

 have to be answered by court decisions, if owners of initial 

 variety and owners of essentially derived varieties produced from 

 those initial varieties cannot come to an agreement. UPOV is 

 likely to provide additional guidelines over time, as evidenced 

 by the various committees which are currently discussing this 

 topic . 



9. Q. Should the PVP office consider whether a variety is 

 essentially derived when granting a certificate or should the 

 question of essential derivation be left to litigation? 



A. The PVPO determines that a variety is distinct, uniform, 

 stable, and new in issuing certificates of protection. 

 Determining essential derivation would require considering the 

 breeding method and the pedigree to determine essential 

 derivation. The PVPO should have no role in determining whether 

 a given variety is an essentially derived variety. This is also 

 the position of the American Seed Trade Association (ASTA) . 



10. Q. Do the provisions of essential derivation impact on 

 other types of intellectual property protection? For instance - 

 must the owner's permission be obtained if a protected variety is 

 transformed with genetic engineering process and protection is 

 sought under a utility patent? 



A. The PVPA enumerates certain acts which require the 

 permission of the PVP certificate holder. If a protected variety 

 is used to produce an essentially derived variety (however that 

 is determined) , and a utility patent is granted on that 



