(3) Another is entitled to an earlier date of determination for the same variety and such other (A) has a certificate of plant variety protection hereunder or (B) has been engaged in a continuing program of development and testing to commercialization, or (C) has within six months after such earlier date of determination adequately described the variety by a publication reasonably deemed a part of the public technical knowledge in this country which description must include a disclosure of the principal characteristics by which the variety is distinguished. (b) The Secretary may, by regulation, extend for a reasonable period of time the one year time period provided in subsection (a) of this section for filing applications, and may in that event provide for at least commensurate reduction of the term of protection. (Pub. L. 91-577, title II, § 42, Dec. 24, 1970, 84 Stat. 1547.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2401, 2562 of this title. § 2403. Reciprocity limits. Protection under this chapter may, by regulation, be limited to nationals of the United States, except where this limitation would violate a treaty and except that nationals of a foreign state in which they are domiciled shall be entitled to so much of the protection here afforded as is afforded by said foreign state to nationals of the United States for the same genus and species. (Pub. L. 91577, title II, § 43, Dec. 24, 1970, 84 Stat. 1547). EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2404. Public interest in wide usage. The Secretary may declare a protected variety open to use on a basis of equitable remuneration to the owner, not less than a reasonable royalty, when he determines that such declaration is necessary in order to insure an adequate supply of fiber, food, or feed in this country and that the owner is unwilling or unable to supply the public needs for the variety at a price which may reasonably be deemed fair. Such declaration may be, with or without limitation, with or without designation of what the remuneration is to be; and shall be subject to review as under section 2461 or 2462 of this title (any finding that the price is not reasonable being reviewable), and shall remain in effect not more than two years. In the event litigation is required to collect such remuneration, a higher rate may be allowed by the court. (Pub. L. 91-577, title II, § 44, Dec. 24, 1970, 84 Stat. 1547.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2327, 2461 of this title. PART E.-APPLICATIONS; FORM; WHO MAY FILE; RELATING BACK; CONFIDENTIALITY § 2421. Application for recognition of plant variety rights. (a) An application for a certificate of Plant Variety Protection may be filed by the owner of the variety sought to be protected. The application shall be made in writing to the Secretary, shall be signed by or on behalf of the applicant, and shall be accompanied by the prescribed fee. (b) An error as to the naming of the breeder, without deceptive intent, may be corrected at any time, in accordance with regulations established by the Secretary. (Pub. L. 91-577, title II, § 51, Dec. 24, 1970, 84 Stat. 1548.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2422. Content of application. An application for a certificate recognizing plant variety rights shall contain: (1) The name of the variety except that a temporary designation will suffice until the certificate is to be issued. (2) A description of the variety setting forth its novelty and a description of the genealogy and breeding procedure, when known. The Secretary may require amplification, including the submission of adequate photographs or drawings or plant specimens, if the description is not adequate or as complete as is reasonably possible, and submission of records or proof of ownership or of allegations made in the application. An applicant may add to or correct the description at any time, before the certificate is issued, upon a showing acceptable to the Secretary that the revised description is retroactively accurate. Courts shall protect others from any injustice which would result. The Secretary may accept records of the breeder and of any official seed certifying agency in this country as evidence of stability where applicable. (3) A declaration that a viable sample of basic seed necessary for propagation of the variety will be deposited and replenished periodically in a public repository in accordance with regulations to be established hereunder. This declaration may be added by amendment. (4) A statement of the basis of applicant's ownership. (Pub. L. 91-577, title II, § 52, Dec. 24, 1970, 84 Stat. 1548.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2481, 2562 of this title. § 2423. Joint breeders. (a) When two or more persons are the breeders, one (or his successor) may apply, naming the others. (b) The Secretary, after such notice as he may prescribe, may issue a certificate of plant variety protection to the applicant and such of the other breeders (or their successors in interest) as may have subsequently joined in the application. (Pub. L. 91-577, title II, § 53, Dec. 24, 1970, 84 Stat. 1548.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2424. Death or incapacity of breeder. Legal representatives of deceased breeders and of those under legal incapacity may make application for plant variety protection upon compliance with the requirements and on the same terms and conditions applicable to the breeder or his successor in interest. (Pub. L. 91-577, title II, § 54, Dec. 24, 1970, 84 Stat. 1548.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2425. Benefit of earlier filing date. (a) An application for a certificate of plant variety protection filed in this country based on the same variety, and on rights derived from the same breeder, on which there has previously been filed an application for plant variety protection in a foreign country which affords similar privileges in the case of applications filed in the United States by nationals of the United States, shall have the same effect as the same application would have if filed in the United States on the date on which the application for plant variety protection for the same variety was first filed in such foreign country, if the application in this country is filed within twelve months from the earliest date on which such foreign application was filed. No application shall be entitled to a right of priority under this section, unless the applicant designates the foreign application in his application or by amendment thereto and, if required by the Secretary, furnishes such copy, translation or both, as the Secretary may specify. (b) An application for a certificate of plant variety protection for the same variety as was the subject of an application previously filed in the United States by or on behalf of the same person, or by his predecessor in title, shall have the same effect as to such variety as though filed on the date of the prior application if filed before the issuance of the certificate or other termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application. (c) A later application shall not by itself establish that a characteristic newly described was in the variety at the time of the earlier application. (Pub. L. 91-577, title II, § 55, Dec. 24, 1970, 84 Stat. 1548.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2426. Confidential status of application. Applications for plant variety protection and their contents shall be kept in confidence by the Plant Variety Protection Office, by the Board, and by the offices in the Department of Agriculture to which access may be given under regulations. No information concerning the same shall be given without the authority of the owner, unless necessary under special circumstances as may be determined by the Secretary, except that the Secretary may publish the variety names designated in applications, stating the kind to which each applies. (Pub. L. 91–577, title II, § 56, Dec. 24, 1970, 84 Stat. 1549.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2427. Publication. The Secretary may establish regulations for the publication of any pending application when publication is requested by the owner. (Pub. L. 91-577, title II, § 57, Dec. 24, 1970, 84 Stat. 1549.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. PART F.-EXAMINATIONS; RESPONSE TIME; INITIAL APPEALS § 2441. Examination of application. The Secretary shall cause an examination to be made of the application and if on such examination it is determined that the applicant is entitled to plant variety protection under the law, the Secretary shall issue a notice of allowance of plant variety protection therefor as hereinafter provided. (Pub. L. 91577, title II, § 61, Dec. 24, 1970, 84 Stat. 1549.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2442. Notice of refusal; reconsideration. (a) Whenever an application is refused, or any objection or requirement made by the examiner, the Secretary shall notify the applicant thereof, stating the reasons therefor, together with such information and references as may be useful in judging the propriety of continuing the prosecution of the application; and if after receiving such notice the applicant requests reconsideration, with or without amendment, the application shall be reconsidered. (b) For taking appropriate action after the mailing to him of an action other than allowance, an applicant shall be allowed six months, or such other time as the Secretary in exceptional circumstances shall set in the refusal, or such time as he may allow as an extension. Without such extension, action may be taken up to three months late by paying an additional fee to be prescribed by the Secretary. (Pub. L. 91-577, title II, § 62, Dec. 24, 1970, 84 Stat. 1549.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2443. Initial appeal. When an application for plant variety protection has been refused by the Plant Variety Protection Office, the applicant may appeal to the Secretary. The Secretary shall seek the advice of the Plant Variety Protection Board on all appeals, before deciding the appeal. (Pub. L. 91-577, title II, § 63, Dec. 24, 1970, 84 Stat. 1550.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2461, 2462 of this title. PART G.-APPEALS TO COURTS AND OTHER REVIEW § 2461. Appeals. From the decisions made under sections 2404, 2443, 2501, 2502, and 2568 of this title appeal may, within sixty days or such further times as the Secretary allows, be taken under the Federal Rules of Appellate Procedure. The Court of Customs and Patent Appeals and United States Courts of Appeals shall have jurisdiction, with venue in the case of the latter as stated in section 2343 of Title 28. (Pub. L. 91-577, title II, § 71, Dec. 24, 1970, 84 Stat. 1550.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2404, 2463, 2568 of this title. § 2462. Civil action against Secretary. An applicant dissatisfied with a decision under section 2443 or 2501 of this title, may, as an alternative to appeal, have remedy by civil action against the Secretary in the United States District Court for the District of Columbia. Such action shall be commenced within sixty days after such decision or within such further time as the Secretary allows. The court may, in the case of review of a decision by the Secretary refusing plant variety protection, adjudge that such applicant is entitled to receive a certificate of plant variety protection for his variety as specified in his application as the facts of the case may appear, on compliance with the requirements of this chapter. (Pub. L. 91-577, title II, § 72, Dec. 24, 1970, 84 Stat. 1550.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2404 of this title. § 2463. Appeal or civil action in contested cases. (a) A party to a proceeding under section 2502 of this title, dissatisfied with the decision, may take an appeal under section 2461 of this title or may have remedy by civil action if commenced within sixty days after such decision or within such further time as the Secretary allows. A party contemplating appeal as provided herein shall notify all adverse parties of his intention and any such adverse party, not the Secretary, shall have the right, by notice served within ten days of the notice to him, to elect that any review shall be by civil action. In such suits the record in the Plant Variety Protection Office shall be admitted on motion of any party upon the terms and conditions as to costs, expenses, and the further cross-examination of witnesses, as the court imposes, without prejudice to the right of the parties to take further testimony. The testimony and ex47-500 0-71-vol. 1-74 hibits of the record in the Plant Variety Protection Office when admitted shall have the same effect as if originally taken and produced in the suit. (b) Such suit may be instituted against the party in interest as shown by the record of the Plant Variety Protection Office at the time of the decision complained of, but any party in interest may become a party to the action. If there be adverse parties residing in a plurality of districts not embraced within the same State, or an adverse party residing in a foreign country, the United States District Court for the District of Columbia, or any United States district court to which it may transfer the case, shall have jurisdiction and may issue summons against the adverse parties directed to the marshall of any district in which any adverse party resides. Summons against adverse parties residing in foreign countries may be served by publication or otherwise as the court directs. The Secretary shall not be made a party but he shall have the right to intervene. Judgment of the court in favor of the right of an applicant to plant variety protection shall authorize the Secretary to issue a certificate of plant variety protection on the filing in the Plant Variety Protection Office of a certified copy of the judgment and on compliance with the requirements of this chapter. (Pub. L. 91-577, title II, § 73, Dec. 24, 1970, 84 Stat. 1550.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2504 of this title. PART H.-CERTIFICATES OF PLANT VARIETY PROTECTION § 2481. Plant variety protection. (a) If it appears that a certificate of plant variety protection should be issued on an application, a written notice of allowance shall be given or mailed to the owner. The notice shall specify the sum, constituting the issue fee, which shall be paid within one month thereafter. (b) Upon timely payment of this sum, and provided that deposit of seed has been made in accordance with section 2422 (3) of this title, the certificate of plant variety protection shall issue. (c) If any payment required by this section is not timely made, but is submitted with an additional fee prescribed by the Secretary within nine months after the due date or within such further time as the Secretary may allow, it shall be accepted. (Pub. L. 91-557, title II, § 81, Dec. 24, 1970, 84 Stat. 1551.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2482. How issued. A certificate of plant variety protection shall be issued in the name of the United States of America under the seal of the Plant Variety Protection Office, and shall be signed by the Secretary or have his signature placed thereon, and shall be recorded in the Plant Variety Protection Office. (Pub. L. 91577, title II, § 82, Dec. 24, 1970, 84 Stat. 1551.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2483. Contents and term of plant variety protection. (a) Every certificate of plant variety protection shall certify that the breeder (or his successor in interest) his heirs or assignees, has the right, during the term of the plant variety protection, to exclude others from selling the variety, or offering it for sale, or reproducing it, or importing it, or exporting it, or using it in producing (as distinguished from developing) a hybrid or different variety therefrom, to the extent provided by this chapter. If the owner so elects, the certificate shall also specify that in the United States, seed of the variety shall be sold by variety name only as a class of certified seed and, if specified, shall also conform to the number of generations designated by the owner. Any rights, or all rights except those elected under the preceding sentence, may be waived; and the certificate shall conform to such waiver. The Secretary may at his discretion permit such election or waiver to be made after certificating and amend the certificate accordingly, without retroactive effect. (b) The term of plant variety protection shall expire seventeen years from the date of issue of the certificate in the United States. If the certificate is not issued within three years from the effective filing date, the Secretary may shorten the term by the amount of delay in the prosecution of the application attributed by the Secretary to the applicant. (c) The term of plant variety protection shall also expire if the owner fails to comply with regulations, in force at the time of certificating, relating to replenishing seed in a public repository: Provided, however, That this expiration shall not occur unless notice is mailed to the last owner recorded as provided in section 2531(d) of this title and he fails, within the time allowed thereafter, not less than three months, to comply with said regulations, paying an additional fee to be prescribed by the Secretary. (Pub. L. 91-577, title II, § 83, Dec. 24, 1970, 84 Stat. 1551.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2484. Certificate of correction of Plant Variety Protection Office mistake. Whenever a mistake in a certificate of plant variety protection, incurred through the fault of the Plant Variety Protection Office, is clearly disclosed by the records of the Office, the Secretary may issue a certificate of correction stating the fact and nature of such mistake, under seal, without charge, to be recorded in the records of plant variety protection. A copy thereof shall be attached to each copy of the published specifications or certificate of plant variety protection and such certificate of correction shall be considered as part of the original certificate of plant variety protection. Every such certificate of plant variety protection shall have the same effect as if the same had been originally issued in such corrected form. The Secretary may issue a corrected certificate of plant variety protection without charge in lieu of and with like effect as a certificate of correction. (Pub. L. 91-577, title II, § 84, Dec. 24, 1970, 84 Stat. 1552.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2485 of this title. § 2485. Certificate of correction of applicant's mistake. Whenever a mistake of a clerical or typographical nature, or of minor character, or in the description of the variety, which was not the fault of the Plant Variety Protection Office, appears in a certificate of plant variety protection and a showing has been made that such mistake occurred in good faith, the Secretary may, upon payment of the required fee, issue a certificate of correction in the manner and with attachment of copies as in section 2484 of this title, if the correction unquestionably could have been made before the certificate issued. Such certificate of plant variety protection shall have the same effect and operation in law on the trial of actions for causes thereafter arising as if the same had been originally issued in such corrected form. (Pub. L. 91-577, title II, § 85, Dec. 24, 1970, 84 Stat. 1552.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2486. Correction of named breeder. An error as to the naming of a breeder in the application, without deceptive intent, shall not affect validity of plant variety protection and may be corrected at any time by the Secretary in accordance with regulations established by him or upon order of a federal court before which the matter is called in question. Upon such correction the Secretary shall issue a certificate accordingly. Such correction shall not deprive any person of any rights he otherwise would have had. (Pub. L. 91-577, title II, § 86, Dec. 24, 1970, 84 Stat. 1552.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. PART I.-REEXAMINATION AFTER ISSUE, AND CONTESTED PROCEEDINGS § 2501. Reexamination after issue. (a) Any person may, within five years after the issuance of a certificate of plant variety protection, notify the Secretary in writing of facts which may have a bearing on the protectability of the variety, and the Secretary may cause such plant variety protection to be reexamined in the light thereof. (b) Reexamination of plant variety protection under this section and appeals shall be pursuant to the same procedures and with the same rights as for original examinations. Abandonment of the procedure while subject to a ruling against the retention of the certificate shall result in cancellation of the plant variety certificate thereon and notice thereof shall be endorsed on copies of the specification of the protected plant variety thereafter distributed by the Plant Variety Protection Office. (c) If a person acting under subsection (a) of this section makes a prima facie showing of facts needing proof, the Secretary may direct that the reexamination include such interparty proceedings as he shall establish. (Pub. L. 91-577, title II, § 91, Dec. 24, 1970, 84 Stat. 1552.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2461, 2462 of this title. § 2502. Priority contest. (a) If the Secretary determines that two applications of different applicants may be based on the same variety, he may: (1) Initiate a priority contest on his own motion whether or not one of the applications may have been certificated; or (2) Issue a certificate on the application having the earliest effective filing date, with notice to all; or (3) Issue a certificate naming alternative owners, under a single variety name acceptable to both. (b) On request of any person when a certificate has been issued naming another as an owner or alternative owner, both having applied for protection on the same variety, the Secretary shall institute a priority contest, except that any person shall have forfeited his right to assert priority for the purpose of obtaining plant variety protection when an adverse certificate has issued if he fails to make the request within one year of the mailing of notice specified in part (2) above 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. (Pub. L. 91-577, title II, § 92, Dec. 24, 1970, 84 Stat. 1553.) (a) A final judgment under section 2502 of this title adverse to an application from which no appeal or other review had been or can be taken or had shall constitute cancellation of any certificating on that application, and notice thereof shall be endorsed on copies of the specifications of the protected plant variety thereafter distributed by the Plant Variety Protection Office. (b) Any person who has not proceeded in accordance with the provision of this part shall not be foreclosed or in any way prejudiced with respect to the defense of an infringement suit or affirmative relief under declaratory judgment proceedings. (c) No person subject to an adverse decision in a proceeding under this part shall be foreclosed with respect to asserting comparable grounds in defense of an infringement suit or as a basis for affirmative relief under declaratory judgment proceedings. (Pub. L. 91-577, title II, § 93, Dec. 24, 1970, 84 Stat. 1553.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. § 2504. Interfering plant variety protection. The owner of a certificate of plant variety protection may have relief against another owner of a certificate of the same variety by civil action, and the court may adjudge the question of validity of the respective certificates, or the ownership of the certificate. The provisions of section 2463 (b) of this title shall apply to actions brought under this section. (Pub. L. 91-577, title II, § 94, Dec. 24, 1970, 84 Stat. 1553.) EFFECTIVE DATE Section effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SUBCHAPTER III.-PLANT VARIETY PROTECTION AND RIGHTS PART J.-OWNERSHIP AND ASSIGNMENT § 2531. Ownership and assignment. (a) Subject to the provisions of this subchapter, plant variety protection shall have the attributes of personal property. (b) Applications for certificates of plant variety protection, or any interest in a variety, shall be assignable by an instrument in writing. The owner may in like manner license or grant and convey an exclusive right to use of the variety in the whole or any specified part of the United States. (c) A certificate of acknowledgment under the hand and official seal of a person authorized to administer oaths within the United States, or in a foreign country, of a diplomatic or consular officer of the United States or an officer authorized to administer oaths whose authority is proved by a certificate of a diplomatic or consular officer of the United States, shall be prima facie evidence of the execution of an assignment, grant, license, or conveyance of plant variety protection or application for plant variety protection. (d) An assignment, grant, conveyance or license shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it, or an acknowledgment thereof by the person giving such encumbrance that there is such encumbrance, is filed for recording in the Plant Variety Protection Office within one month from its date or at least one month prior to the date of such subsequent purchase or mortgage. (Pub. L. 91-577, title III, § 101, Dec. 24, 1970, 84 Stat. 1554.) EFFECTIVE DATE Section effective December 24, 1970, see section 141 of Pub. L. 91-577, set out as a note under section 2321 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2483 of this title. § 2532. Ownership during testing. An owner who, with notice that release is for testing only, releases possession of seed or other sexually |