and a time not less than 30 days shall be set for presenting objections. [37 FR 23141, Oct. 28, 1972, as amended at 40 FR 1027, Jan. 6, 1975] $180.19 Publication of pending appli cations. Information relating to pending applications shall be published in the Official Journal periodically as determined by the Commissioner to be necessary in the public interest. With respect to each application, the Official Journal shall show the (a) application number and date of filing, (b) the name of the variety or temporary designation, (c) the name of the kind of seed, and (d) whether the applicant specified that the variety is to be sold by variety name only as a class of certified seed, together with a limitation in the number of generations that it can be certified. Additional information, such as the name and address of the applicant or a brief description of the novel features of the variety, may be published only upon request or approval received from the applicant at the time the application is filed or at any time before the notice of allowance of a certificate is issued. [40 FR 1027, Jan. 6, 1975] § 180.20 Abandonment for failure to respond within time limit. (a) Except as otherwise provided in 180.104, if an applicant fails to advance actively his application within 6 months after the date when the last request for action was mailed to him by the Office, or within such longer time as may be fixed by the Commissioner, the application shall be deemed abandoned. (b) The submission of an amendment to the application, not responsive to the last request by the Office for action, and any proceedings relative thereto, shall not operate to save the application from abandonment. (c) When the applicant makes a bona fide attempt to advance his application, and is in substantial compliance with the request for action, but has inadvertently failed to comply with some procedural requirement, opportunity to comply with the procedural requirement shall be given to the applicant before the application shall be deemed abandoned. The Commissioner may set a shortened period, not less than 30 days, to correct any deficiency in the application. § 180.21 Extension of time for reply. The time for reply by an applicant to a request by the Office for certain action, shall be extended by the Commissioner only for good and sufficient cause, and for a specified reasonable time. A request for extension shall be filed on or before the specified time for reply. In no case shall the mere filing of a request for extension require the granting of an extension or stay the time for reply. § 180.22 Revival of application abandoned for failure to reply. An application abandoned for failure on the part of the applicant to advance actively his application to its completion, in accordance with the regulations in this part, may be revived as a pending application upon a finding by the Commissioner that the failure was inadvertent or unavoidable and without fraudulent intent. A request to revive an abandoned application shall be accompanied by a written statement showing the cause of the failure to respond, a. response to the last request for action, and by the specified fee. § 180.23 Voluntary withdrawal abandonment of application. and (a) An application may be voluntarily withdrawn or abandoned by submitting to the Office a written request for withdrawal or abandonment signed by the applicant or his attorney or agent of record, if any, or the assignee of record, if any. (b) An application which has been voluntarily abandoned may be revived within 3 months of such abandonment by the payment of the prescribed fee and a showing that the abandonment occurred without fraudulent intent. (c) An original application which has been voluntarily withdrawn shall be returned to the applicant and may be reconsidered only by refiling and payment of a new application fee. the examination and that the examination fee is due and payable before proceeding. (b) Examinations of applications shall include a review of all available documents, publications, or other material relating to varieties of the species involved in the application, except that if there are fundamental defects in the application, as determined by the examiner, the examination may be limited to an identificates, a notice of allowance shall be tion to the applicant of needed corrective action. However, matters of form or procedure need not, but may, be raised by an examiner until a variety is found to be novel and entitled to protection. § 180.101 Notice of allowance. (a) If, on examination, it shall appear that the applicant is entitled to a cer'tificate, a notice of allowance shall be sent to him or his attorney or his agent of record, if any, calling for the payment of the prescribed fee, which fee shall be paid within 1 month from the date of the notice of allowance. Thereafter, a fee for delayed payment shall be made as required under § 180.175. (b) Upon request by the Office, the applicant shall submit a reasonable quantity of the viable basic seed required to reproduce the novel variety, as determined by the Commissioner. Failure to deposit viable basic seed within 3 months of the date of request shall result in the application being considered abandoned. § 180.102 Amendments after allowance. Amendments to the application after the notice of allowance is issued may be made, if the certificate has not been issued. § 180.103 Issuance of certificate. (a) After the notice of allowance has been issued, the prescribed fee and sample of viable basic seed received by the Office, and the applicant has clearly specified whether or not the variety shall be sold by variety name only as a class of certified seed, the certificate shall be promptly issued. Once an election is made and a certificate issued specifying that seed of the variety shall be sold by variety name only as a class of certified seed, no waiver of such rights shall be permitted by amendment of the certificate. (b) The certificate shall be delivered or mailed to the owner. (a) Except as provided in paragraph (c) of this section, if the fee specified in the notice of allowance is not paid within 1 month from the date of the notice, the application shall be considered abandoned. (b) Upon request by the Office, the owner shall replenish the viable basic seed sample of the novel variety. Upon request, the sample of seed which has been replaced shall be returned to the owner, otherwise it shall be destroyed. Failure to replenish viable basic seed within 3 months from the date of request shall result in the certificate being regarded as abandoned. No sooner than 1 year after the date of such request, notices of abandoned certificates shall be published in the Official Journal indicating that the variety has become open for use by the public and, if previously specified to be sold by variety name as "certified seed only," that such restriction no longer applies. (c) If the allowance fee, the viable basic seed sample or the fee, if any, for delayed payment are submitted within 9 months of the final due date, it may be accepted by the Commissioner as though no abandonment had occurred. For good cause, the Commissioner may extend for a reasonable time the period for submitting a viable basic seed sample before declaring the certificate abandoned. (d) A certificate may be voluntarily abandoned by the applicant or his attorney or agent of record, if any, or the assignee of record, if any, by notifying the Commissioner in writing. Upon receipt of such notice, the Commissioner shall publish a notice in the Official Journal that the variety has become open for use by the public, and if previously specified to be sold by variety name as "certified seed only," that such restriction no longer applies. § 180.105 Denial of application. (a) If the variety is found by the examiner to be not novel the application shall be denied. (b) In denying an application for want of novelty, the examiner shall cite the reasons the application was denied. When a reason involves the citation of certain material which is complex, the particular part of the material relied on shall be designated as nearly as practi cable. The pertinence of each reason, if not obvious, shall be clearly explained. (c) If prior domestic certificates are cited as a reason for denial, their numbers and dates and the names of the Owners shall be stated. If prior foreign certificates or rights are cited, as a reason for denial, their nationality or country, numbers and dates, and the names of the owners shall be stated, and such other data shall be furnished as may be necessary to enable the applicant to identify the cited certificates or rights. (d) If printed publications are cited as a reason for denial, the author (if any), title, date, pages or plates, and places of publication, or place where a copy can be found shall be given. (e) When a denial is based on facts known to the examiner, and upon request by the applicant, the denial shall be supported by the affidavit of the examiner. Such affidavit shall be subject to contradiction or explanation by the affidavits of the applicant and other persons. (f) Abandoned applications may not be cited as reasons for denial. § 180.106 Reply by applicant; request for reconsideration. (a) After an adverse action by the examiner, the applicant may respond to the denial and may request & reconsideration, with or without amendment of his application. Any amendment shall be responsive to the reason or reasons for denial specified by the examiner. (b) To obtain a reconsideration, the applicant shall submit a request for reconsideration in writing and shall specifically point out the alleged errors in the examiner's action. The applicant shall respond to each reason cited by the examiner as the basis for the adverse action. A request for reconsideration of a denial based on a faulty form or procedure may be held in abeyance by the Commisioner until the question of novelty is settled. (c) An applicant's request for a reconsideration must be a bona fide attempt to advance the case to final action. A general allegation by the applicant that certain language which he cites in his application or amendment thereto establishes novelty without specifically explaining how the language distinguishes the alleged novel variety from the material cited by the examiner shall not be grounds for a reconsideration. If, upon reconsideration, the application is denied by the Commissioner, the applicant shall be notified by the Commissioner of the reason or reasons for denial in the same manner as after the first examination. Any such denial shall be final unless appealed by the applicant to the Secretary within 60 days from the date of denial in accordance with §§ 180.300-180.303. If the denial is sustained by the Secretary on appeal, the denial shall be final subject to appeal to the courts as provided in § 180.500. § 180.108 Amendments after final action. (a) After a final denial by the Commissioner, amendments to the application may be made to overcome the reason or reasons for denial. The acceptance or refusal of any such amendment by the Office and any proceedings relative thereto, shall not relieve the applicant from the time limit set for an appeal or an abandonment for failure to reply. (b) No amendment of the application can be made in an appeal proceeding. After decision on appeal, amendments can only be made to carry into effect a recommendation under § 180.302(b). CORRECTION OF ERRORS IN CERTIFICATE § 180.120 Corrected certificate-Office mistake. When a certificate is incorrect because of a mistake in the Office, the Commissioner may issue a certificate of correction stating the fact and nature of such mistake, under seal, without charge, to be issued to the owner and recorded in the records of the Office, or the Commissioner may issue a corrected certificate without charge in lieu of and with like effect as a certificate of correction, in accordance with section 84 of the Act. § 180.121 Corrected certificate-applicant's mistake. When a certificate is incorrect because of a mistake by the applicant of a clerical or typographical nature, or of minor character, or in the description of the variety (including, but not limited to, the use of a misleading variety name or a name assigned to a different variety of the same species), and the mistake is found by the Commissioner to have occurred in good faith and does not require a further examination, the Commissioner may, upon payment of the required fee, correct the certificate by issuing a certificate of correction stating the fact and nature of such mistake, under seal, to be issued to the owner and recorded in the records of the Office, in accordance with section 85 of the Act. If the mistake requires a reexamination, a correction of the certificate shall be dependent on the results of the reexamination. REISSUANCE OF CERTIFICATE § 180.122 Certified seed only election. When an owner elects after a certificate is issued to sell the protected variety by variety name only as a class of certified seed, a new certificate may be issued upon return of the original certificate to the Office and payment of the appropriate fee. ASSIGNMENTS AND RECORDING $180.130 Recording of assignments. (a) Any assignment of an application for a certificate, or of a certificate of plant variety protection, or of any interest in a variety, or any license or grant and conveyance of any right to use of the variety, may be submitted for recording in the Office in accordance with section 101 of the Act (7 U.S.C. 2531). (b) No instrument shall be recorded which is not in the English language or which does not identify the certificate or application to which it relates. (c) An instrument relating to title of a certificate shall identify the certificate by number and date, the name of the owner, and the name of the novel variety as stated in the certificate. An instrument relating to title of an application shall identify an application by number and date of filing, the name of the owner, and the name of the novel variety as stated in the application. (d) If an assignment is executed concurrently with or subsequent to the filing of an application but before its number and filing date are ascertained, the assignment shall identify the application by the date of the application, the name of the owner, and the name of the novel variety. signment, such as the payment of money, have been fulfilled. § 180.132 Assignment records open to public inspection. (a) Assignment records relating to original or amended certificates shall be open to public inspection and copies of any recorded document may be obtained upon payment of the prescribed fee. (b) Assignment records relating to any pending or abandoned application shall not be available for inspection except to the extent that pending applications are published as provided in section 57 of the Act and § 180.19, or where necessary to carry out the provisions of any Act of Congress. Copies of assignment records and information on pending or abandoned applications shall be obtainable only upon written authority of the applicant or his assignee, or attorney or agent of record, or where necessary to carry out the provisions of any Act of Congress. An order for a copy of an assignment shall give the proper identification of the assignment. MARKING OR LABELING PROVISIONS § 180.140 After filing. Upon filing an application for protection of a novel variety and payment of the prescribed fee, the owner, or his designee, may label the variety or containers of the seed of the variety or plants produced from such seed, substantially as follows: "Unauthorized Propagation Prohibited-(Unauthorized Seed Multiplication Prohibited)—U.S. Variety Protection Applied For." Upon issuance of a certificate, the owner of the novel variety or his designee may label the variety or containers of the seed of the variety or plants produced from such seed substantially as follows: "Unauthorized Propagation Prohibited(Unauthorized Seed Multiplication Prohibited)--U.S. Protected Variety." § 180.142 For testing or increase. An owner who contemplates filing an application and releases for testing or increase, seed of the variety or other sexually reproducible plant material produced from seed of the variety, may label such plant material or containers of the seed or plants substantially as fol (a) Upon filing an application, or amendment thereto, specifying seed of the variety is to be sold by variety name only as a class of certified seed, the owner, or his designee, may label containers of seed of the variety substantially as follows: "Unauthorized Propagation Prohibited-U.S. Variety Protection Applied for Specifying That Seed of This Variety Is To Be Sold By Variety Name Only as a Class of Certified Seed." (b) An owner who has received a certificate specifying that a variety is to be sold by variety name only as a class of certified seed may label containers of the seed of the variety substantially as follows: "Unauthorized Propagation Prohibited-To Be Sold By Variety Name Only as a Class of Certified Seed-U.S. Protected Variety." § 180.144 Additional marking or labeling. Additional clarifying information that is not false or misleading may be used by the owner in addition to the above markings or labeling. ATTORNEYS AND AGENTS § 180.150 Right to be represented. An applicant may actively advance an application or he may be represented by any attorney or agent authorized in writing by him. Only attorneys or agents specified by the applicant shall be allowed to inspect papers or take action of any kind on behalf of the applicant in any pending application or proceedings. § 180.152 Revocation of authorization; withdrawal. An authorization of an attorney or agent may be revoked by an applicant at any time, and an attorney or agent may withdraw, upon application to the Commissioner. When the authorization is so revoked, or the attorney or agent has so withdrawn, the Office shall inform the interested parties and shall thereafter communicate directly with the applicant, or with such other attorney or agent as the applicant may appoint. An assignment will not of itself operate as a revocation of authorization previously given, but the assignee of the entire interest may revoke previous authorizations and be represented by an attorney or agent of his own selection. § 180.153 Persons recognized. Unless specifically authorized as provided in § 180.151, no person shall be permitted to file or advance applications before the Office on behalf of another person. § 180.154 Government employees. Officers and employees of the United States who are disqualified by statute (18 U.S.C. 203 and 205) from practicing as attorneys or agents in proceedings or other matters before Government departments or agencies, shall not be eligible to represent applicants, except officers and employees whose official duties require the preparation and prosecution of applications for certificates of variety protection. § 180.157 Professional conduct. Attorneys and agents appearing before the Office shall conform to the standards of ethical and professional conduct generally applicable to attorneys appearing before the courts of the United States. § 180.158 Advertising. (a) The use of advertising, circulars, letters, cards, and similar material to solicit plant variety protection business, directly or indirectly, is forbidden as unprofessional conduct, and any person engaging in such solicitation, or associated with or employed by other who so solicit, shall be refused recognition to practice before the Office or may be suspended, excluded, or disbarred from further practice before the Office. |