Presented by the Honorable Richard Shelby
Dear Senator Shelby:
On behalf of the Executive Committee of the American Seed Trade Association (ASTA) we are writing to request your assistance in your role as a conferee in the reconciliation of the Agriculture Appropriations bill, (H.R. 2673) as passed by the U.S. Senate on November 6, 2003. ASTA is an association representing the interests of over 800 member companies in or serving the seed industry in the United States. Our concern is with Senate amendment 2120, which passed by voice vote. The amendment directs the Secretary of Agriculture to extend the term of protection under the Plant Variety Protection Act for a variety whose protection under a previously issued certificate expired about a year and a half ago.
For several reasons, ASTA is opposed to this measure which legislates special circumstances affecting plant variety protection. Intellectual property rights protection is the very foundation of the U.S. seed industry. Without effective intellectual property protection the seed industry as we know it today would not exist and all American farmers and consumers would be the losers. The Plant Variety Protection Act is an integral part of that foundation. Any erosion of that Act is an erosion of the most vital aspect of the seed industry - intellectual property.
A chief concern for members of the seed industry is that by providing this specific exception, the door is open for similar requests in coming years and it is reasonable to expect additional requests will be forthcoming leading to erosion of the effectiveness of the Plant Variety Protection Act.
While supporters of this amendment are seeking to extend protection for a viable and very useful plant variety, ASTA must respectfully point out that there are scores of varieties that are viable and useful that hold Plant Variety Protection certificates that expire each year. In fiscal year ending September 2003, 155 certificates expired. In fiscal year 2002, the number was 120. Extending protection for a specific variety beyond the period permitted by statute does not encourage continued breeding efforts and does not justify vast resources committed to research and development that have been and remain so important to the productivity of American farmers.
In 1970, when Congress enacted the Plant Variety Protection Act, ASTA and its members worked closely with members of Congress to ensure that language adequately and appropriately complemented U.S. intellectual property rights policies. Congress provided for a Secretary's Advisory Council in the original Plant Variety Protection Act, but this Council has not supported this or similar proposals. The Act also contains important language that affords the Secretary latitude in special circumstances that include food security, national disasters, and disease epidemics. It does not, however, provide guidance for purely economic reasons.
In addition, each year, ASTA works hard to advance intellectual property rights laws around the world, especially in developing countries. To that end, if this amendment stands, our ability to interact and negotiate with our counterparts overseas will be compromised.
We also point out that the variety at issue entered the public domain in June 2002. The amendment therefore, takes something now in the public domain and assigns it to a specific entity. Not only would this put at legal risk companies that anticipate marketing this variety as the law permits, but it would be a dangerous precedent to now extend the length of protection for an additional 10 years. It would be the Secretary of Agriculture, not the market, determining if the variety is commercially viable and available in sufficient quantities to meet market demands after a five year period. Complicating the situation is the fact that the amendment contains no standards for or definitions of "commercially viable" or "sufficient quantities."
Congress amended the Act in 1994 as a way to bring U.S. law into compliance with the UPOV Convention, an international treaty which addresses plant variety issues and requires protection for a fixed period of time. At that time, several technical changes were made to the Act, including extending the length of protection from 18 years to 20. Extending the period of PVP protection for a variety is inconsistent with the fixed period provision of UPOV.
We have confidence in the market, our customers and the pipeline. We also know that seed companies are not the only benefactors of Plant Variety Protection. Plant breeders including those from universities and government use Plant Variety Protection certificate protection because of its recognized predictability and strength. We believe that changing the criteria would stymie research and ultimately the farmer and the consumer would be the losers.
Thank you for this opportunity to express our views. We would be pleased to provide any additional information or clarification. Please call me if I can be of further service.