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(b) The use of simple professional letterheads, calling cards, or office signs, simple announcements necessitated by opening an office, change of association, or change of address, distributed to clients and friends and insertion of listings in common form (not display) in a classified telephone or city directory, and listings and professional cards with biographical data in standard professional directories shall not be considered a violation of this section.
FEES AND CHARGES $ 180.175 Fee and charges.
The following fees and charges apply to the services and actions specified below: (a) Filing application...
$250 (b) Search or examination..
250 (c) Allowance and issuance of certificates
250 (d) To revive an abandoned application
50 (e) Reproductions of records, drawIngs, certificates, exhibits, or printed material (copy per page of material)--- 1
(1) Authentication (each document)
1 (8) Correcting or reissuance of a certincate
10 (h) Recording assignments.-
6 (1) Copies of 8 x 10 photographs in color
12 (1) Additional fee for reconsideration
25 (k) Additional fee for late payment.
25 (1) Additional fee for late replenishment of seed.-
25 (m) Appeal to Secretary-
50 (n) Field Inspections by & representative of the Plant Variety Protection Office made at the request of the applicant shall be reImbursable in full (including travel, per diem or subsistence, and salary) in accordance with standardized Government Travel Regulations.
(0) Any other services not covered above will be charged for at rates prescribed by the Commissioner, but in no event shall they exceed $20 per man-hour. 8 180.176 Fees payable in advance.
Fees and charges shall be paid at the time of making application or at the time of submitting a request for any action by the Office for which a fee or charge is payable and established in this part. 8 180.177 Method of payment.
Checks or money orders shall be made payable to the Treasurer of the United
States. Remittances from foreign countries must be payable and immediately negotiable in the United States for the full amount of the prescribed fee. Money sent by mail to the Ofice shall be sent at the risk of the sender. 8 180.178 Refunds.
Money paid by mistake or excess pay. ments shall be refunded, but a mere change of plans after the payment of money, as when a party decides to withdraw an application or to withdraw an appeal, shall not entitle a party to a refund. Amounts of $1 or less shall not be refunded unless specifically demanded. § 180.179 Copies and certified copies.
(a) Upon request, copies of applications, certificates, or of any records, books, papers, drawings, or photographs in the custody of the Office and which are open to the public, will be furnished to persons entitled thereto, upon payment of the prescribed fee.
(b) Upon request, copies will be authenticated by imprint of the seal of the Office and certified by the oficial authorized by the Commissioner upon payment of the prescribed fee.
AVAILABILITY OF OFFICE RECORDS $ 180.190 When open records are avail.
able. Copies of records which are open to the public and in the custody of the Oifice may be examined in the Ofice during regular business hours upon approval by the Commissioner.
PROTEST PROCEEDINGS & 180.200 Protests to the grant of a
certificate. Opposition on the part of any person to the grant of a certificate shall be permitted while an application is pending and for a period not to exceed 5 years following the issuance of a certificate. $ 180.201 Protest proceedings.
(a) Opposition shall be made by submitting in writing a petition for protest proceedings, which petition shall be supported by affidavits and shall show the reason or reasons for opposing the application or certificate. The petition and accompanying papers shall be filed in duplicate. If it appears to an examiner that a variety involved in a pending ap
om in and
plication or covered by a certificate may not be or may not have been entitled to protection under the Act, a protest proceeding may be permitted by the Commissioner.
(b) One copy of the petition and accompanying papers shall be served by the Ofice upon the applicant or owner, or his attorney or agent of record.
(c) An answer, by the applicant or owner of the certificate or his assignee. in response to the petition may be filed
with the Commissioner within 60 days pan
after service of the petition upon such person. If no answer is filed within said
period, the Commissioner shall decide the fiede matter on the basis of the allegations set forth in the petition.
(d) If the petition and answer raise any issue of fact needing proof, the Commissioner shall afford each of the parties
a period of 60 days in which to file sworn em
statements or affidavits in support of their respective positions.
(e) As soon as practicable after the petition or the petition and answer are filed or after the expiration of any period for filing sworn statements or affdavits, the Commissioner shall issue his decision as to whether the protests are upheld or denied. The Commissioner may, following the protest proceeding, cancel any certificate issued and may grant another certificate for the same novel variety to a person who proves to the satisfaction of the Commissioner, that he is the breeder or discoverer. The decision shall be served upon the parties in the manner provided in § 180.403.
A priority contest may be instituted by :
the Secretary, on his own motion, or upon the request of any person who has applied for protection on the same variety for which an adverse certificate has been issued, for the purpose of determining the question of priority between two or more parties claiming development or discovery of the same novel variety: Provided, however, That any person shall have forfeited his right to assert priority when an adverse certificate has been issued if he fails to make a request for the institution of a priority contest within 1 year of the publication in the
Oficial Journal of issuance of the adverse certificate by the Secretary or if he fails to make the request within the period for taking action after refusal of his application on the basis of the adverse certificate. § 180.206 Preparation for priority con
test between applicants. (a) Before a priority contest will be handled by the Office, an examiner must determine that the same novel variety is involved in separate applications filed by two or more parties and apparently certifiable to each of the parties, subject to the determination of the question of priority.
(b) The fact that a certificate has been issued will not prevent a priority contest. § 180.207 Preparation of priority papers
and declaration of priority contest. (a) When a priority question is found to exist, the examiner shall forward the pertinent files to the Commissioner together with a written statement showing the reason for the contest.
(b) The Commissioner shall institute and declare the priority contest by forwarding a notice to each of the applicants involved. Each notice shall include the name and residence of each of the other applicants or those of his attorney or agent, if any, and of any assignee, and will identify the application of each opposing party by number and filing date, or in the case of a certificate, by the number and date of the certificate. The notice shall specify the basis of the priority contest. The notice shall specify & time, not to exceed 2 months, for filling preliminary statements.
(c) When a notice is returned to the Office undelivered, or when one of the parties resides abroad and his agent in the United States is unknown, notice may be given by publication once in the Official Journal. § 180.208 Burden of proof.
The parties to a priority contest will be presumed to have developed their varieties in the chronological order of the flling dates of their applications for certificates involved in the priority contest, and the burden of proof will rest upon the party who last filed an application.
& 180.209 Preliminary statement the case of an application filed in & for
novel variety developed in the United eign country, English translations shall States.
be served upon all interested parties by (a) Each party to the priority contest the party relying on the application filed is required to file on or before a date in the foreign country. fixed by the Office, a concise preliminary
$ 180.210 Preliminary statement statement giving the facts and dates
novel variety developed in a foreign relating to the development of his al
country. leged novel variety. The preliminary staternent must be signed by the owner:
When the novel variety was developed Provided, however, That in appropriate
in a foreign country, the preliminary circumstances, as when the owner is dead
statement must show (a) the information or legally incapacitated or a showing is
specified in § 180.209(c) through (e) and made of inability to obtain a statement
(b) whether, and if so, when and under from the owner, the preliminary state
what circumstances the novel variety was ment may be made by the assignee or
introduced into the United States by or by someone authorized or entitled to on behalf of the party. make the statement and having knowl
§ 180.211 Statements sealed before fil. edge of the facts.
ing. (b) Preliminary statements shall be
The preliminary statement shall be filled with the Office in duplicate. A copy
submitted in a sealed envelope bearing shall be forwarded to each opposing
the name of the party filing it and the party by the Office as soon as practicablo
number and title of the priority contest after both parties have fled their state
as shown on the notice issued by the ments within the requisite period.
Office. The envelope should be enclosed (c) In filing a preliminary statement
in an outer mailing envelope marked "TO each party must show the following
Be Opened by the Commissioner." information: (1) The date upon which the first de
$ 180.212 Correction of statement on termination of the novel variety was
In case of material error arising (2) The date upon which the first through inadvertence or mistake, & pre written description of the novel variety liminary statement may be corrected was made. If a written description of the
upon a satisfactory showing to the Comnovel variety has not been made prior missioner that the correction is of mse to the filling date of the application, it terial significance. Correction of the must be so stated.
statement must be made as 8000 88 (3) The date of the first act or acts practicable after the discovery of tho susceptible of proof (other than making
error. a written description or disclosing the novel variety to another person), which,
$ 180.213 Failure to file statements if proven, would establish determination If any party to & priority contest falls of the novel variety, and a brief descrip- to file a preliminary statement, he shall tion of such act or acts. If there have be restricted to his earliest effective filing been no such acts, it must be so stated. date.
(4) The date of the actual production of the novel variety. If the novel variety
$ 180.214 Access to preliminary state
ments. had not been actually produced before the filling date of the application, it must The preliminary statements shall be be so stated.
open to the inspection of any party after (d) When an allegation as to the first the date set for the filing of preliminary written description (paragraph (c) (2) of statements ($ 180.207(b)), but shall not this section) is made, a copy of such be open to inspection prior to that time. written description shall be attached to the statement.
$ 180.215 Dissolution at the request of (e) If a party intends to rely on
commissioner. a prior application, domestic or foreign, If during a priority contest, informathe preliminary statement shall clearly tion is submitted or found which, in tho identify such prior application. Copies of opinion of the Commissioner, may renthe cited application and related docu- der the variety ineligible for a certificate, ments will be served by the Office upon the priority contest may be suspended by all interested parties to the contest. In the Commissioner and referred to an ex
aminer for consideration of the matter opinion establishes the fact that there and the parties will be notified of the has been irregularity which amounts to reason for the suspension. Arguments of & bar to the grant of a certificate to the parties regarding the suspension will either of the parties. The Commissioner be considered if filed within 60 days of may suspend the priority contest and
the notification. The suspension will then remand the case to the examiner for furreloped be continued, modified, or dismissed in ther consideration of the matters to
accordance with the determination by which attention has been directed. the Commissioner.
§ 180.220 Decision by Commissioner. the § 180.216 Concession; abandonment.
(a) When a priority contest is con(a) An applicant or a certificate holder cluded on the basis of preliminary statethe involved in a priority contest may, at any ments, or otherwise, proposed findings bent time, file a written concession of priority, of fact, conclusions, and notice of prior
or abandonment of the certificate, signed ity shall be issued by the Commissioner ited & by him. Upon the filing of such an in- to the interested parties, giving them a
strument by any party, the decision shall specified period, not less than 30 days, be rendered against him by the Com- to show cause why such proposed findmissioner.
ings of fact, conclusions, and notice of (b) A concession of priority may not priority should not be made final. Any be made by an assignee of a part interest. response made during the specified pe$ 180.217 Affidavits and exhibits.
riod will be considered by the Com
missioner. Additional affidavits Affidavits and exhibits, including ofi- exhibits will not be considered unless cial records and any special matter con
accompanied by a showing of good tained in a printed publication, pertinent
cause acceptable to the Commissioner. to the issue involved in the contest, may Thereafter, final findings of fact, conbe introduced in evidence in a priority clusions, and notice of priority shall be contest by any party to the contest. In
issued by the Commissioner. the case of official records and printed
(b) The decision shall be entered by publications, the party introducing the the Commissioner against party evidence shall specify the record or the
whose preliminary statement alleges & printed publication, the page or pages
date of determination later than the thereof to be used, indicating generally
filing date of the other party's applicato i its relevancy, and submit to the Com
tion. missioner the record or authenticated copy, or the printed publication or a $ 180.221 Status of claims of defeated copy. Copies of affidavits and exhibits, applicant. including any record or publication, shall Whenever a final notice of priority be served by the Commissioner on each has been issued by the Commissioner in of the other interested parties.
a priority proceeding and the time limit
for an appeal from such decision has § 180.218 Matters considered in deter
expired, the claim or claims constituting mining priority. !!
the issue of the priority stand finally In determining priority, the Commis- disposed of without further action by sioner will consider only priority of de- the Commissioner. velopment based on the evidence sub
$ 180.222 Second priority contest. mitted. Questions of novelty generally
will not be considered in the decision on A second priority contest between the hogy
priority. If he desires, the Commissioner same parties shall not be entertained by may refer his proposed findings of fact,
the Commissioner for the same novel conclusions, and notice of priority to the variety. 0. Board for an advisory decision.
APPEAL TO THE SECRETARY $ 180.219 Recommendation by Commis. $ 180.300 Petition to the Secretary. sioner.
(a) Petition may be made to the The Commissioner may, either before Secretary from any final action of the or concurrently with his decision on the Commissioner denying an application question of priority, but independently or refusing to allow a certificate to be of such decision, direct the attention of issued or from any adverse decision of the examiner to any matter not relating the Commissioner made under to priority which may come to the Com- $ $ 180.18(c), 180.107, 180.201(e), and missioner's attention, and which in his 180.220.
(b) Any such petition shall contain a pired and no such appeal or civil action statement of the facts involved and the has been filed, proceedings in the appeal point or points to be reviewed and the shall be considered terminated as of the actions requested.
dismissal or expiration date except in (c) A petition to the Secretary shall those cases in which the nature of the be filled in duplicate and accompanied decision requires further action by the by the prescribed fee (see § 180.175). Commissioner. If the decision of the
(d) Upon request, an opportunity to Secretary is appealed or a civil action present data, views, and arguments has been filed pursuant to sections 71, orally, in an informal manner or in a 72, or 73 of the Act, the decision of the formal hearing, shall be given to in- Secretary will be stayed pending the terested persons. If a formal hearing outcome of the court appeal or civil is requested, the proceeding shall be action. conducted in accordance with $ $ 50.28
GENERAL PROCEDURES IN PRIORITY and 50.30-50.33 (8$ 50.28, 50.30–50.33 of
PROTEST, OR APPEAL PROCEEDINGS this chapter) of the rules of practice under the Agricultural Marketing Act $ 180.400 Extensions of time. of 1946, as amended (7 U.S.C. 1621, et
Upon a showing of good cause, extenseq.).
sions of time not otherwise provided for (e) Except as otherwise vided in
may be granted by the Commissioner or, the rules in this part, any such peti
if an appeal has been filed, by the tion not filed within 60 days from the
Secretary for taking any action required action complained of, shall be dismissed
in any priority protest, appeal as untimely.
proceeding. | 180.301 Commissioner's answer.
$ 180.401 Miscellaneous provisions. (a) The Commissioner may, within
(a) Petitions for reconsideration or such time as may be directed by the
modification of the decision of the ComSecretary, furnish a written statement
missioner in priority or protest proceedto the Secretary in answer to the ap- ings shall be filed within 20 days after pellant's petition, including such ex
the date of the decision. planation of the reasons for his action
(b) The Commissioner may consider as may be necessary and supplying a on petition any matter involving abuse copy to the appellant. ,
of discretion in the exercise of an ex(b) Within 20 days from the date of aminer's authority, or such other matsuch answer, the appellant may file & ters as he may deem proper to consider. reply statement directed only to such Any such petition, if not filed within 20 new points of argument as may be raised days from the decision complained of, in the Commissioner's answer.
may be dismissed as untimely. $ 180.302 Decision by the Secretary.
Service of papers. (a) The Secretary, after receiving the
(a) Every paper required to be served advice of the Board, may affirm or re
on opposing parties and filed in the verse the decision of the Commissioner
Office in any priority, protest, or appeal in whole or in part.
proceeding must be served by the Secre(b) Should the decision of the Sec
tary in the manner provided in § 180.403. retary include an explicit statement that
(b) The requirement in certain seca certificate be allowed based on an
tions that a specified paper shall be amended application, the applicant shall
served includes a requirement that all have the right to amend his application
related supporting papers shall also be in conformity with such statement and
served. Proof of such service upon other such decision shall be binding on the
parties to the proceeding must be made Commissioner.
before the supporting papers will be
considered by the Commissioner or § 180.303 Action following decision. Secretary. (a) Copies of the decision of the Sec
$ 180.403 Manner of service. retary shall be served upon the appellant and the Commissioner in the
Service of any paper under this part manner provided in $ 180.403.
must be on the attorney or agent of the (b) When an appeal petition is dis- party if there be such or on the party if missed, or when the time for appeal to
there is no attorney or agent, and may the courts pursuant to the Act has ex- be made in any of the following ways: