The Agriculture Improvement Act of 2018, commonly known as the 2018 Farm Bill, legalized the cultivation of hemp throughout the United States and extended the right to protection under the Plant Variety Protection Act (PVPA) to breeders of asexually produced plant varieties, subject to certain qualifications. For the hemp industry, this means a new set of intellectual property rights are now available for new and distinct varieties of hemp in the form of a certificate issued by the Plant Variety Protection Office (PVPO) of the U.S. Department of Agriculture (USDA).
Under Section 297A of the 2018 Farm Bill, signed into law on December 20, 2018, “hemp” is any part of the cannabis plant, including the seeds and all derivatives or extracts from the same, containing no more than 0.3 percent of tetrahydrocannabinol (THC) on a dry weight basis. Certificates from the PVPO will protect new and distinct hemp varieties for 20 years.
As with patents, certificate owners may exclude others from making their varieties in the United States and manage their breeders’ rights through licensing.
To qualify for protection, new hemp varieties must not have been sold or publicly disposed within a year (within the United States) or four years (outside the United States) of the application date. To be distinct, a new variety must also be “clearly distinguishable” from any publicly known variety at the time of application. The “new” and “distinct” requirements operate in concert to create a statutory requirement that is like the novelty requirement of the patent system.
Protectable plant varieties must also be “uniform,” or subject only to commercially acceptable variations, and “stable,” meaning reproduction will result in essentially the same variety consistently.
To obtain a certificate, a breeder must apply to the PVPO. While the filing fee is high compared to patent application fees, the PVPO application is a form submission that does not require drafting, as is the case with applying for a patent, although certain supplemental information required should be prepared by an attorney or regulatory professional familiar with the process.
The following are just a few key application requirements:
- the name of the variety, which must be unique compared to publicly known varieties
- genealogy and breeding methods
- selection criteria
- explanations of uniformity and stability
- number and nature of expected genetic variants
- specification of traits that make the variety distinct
The USPTO recently adopted new standards for the registration of hemp-related trademarks. If you apply for plant protection under the PVPA, you must have a unique name. This suggests the PVPO will require you to change the name if it is too similar to that of a publicly known variety, whether or not the name is registered with the USPTO.
There are guidelines as to the types of evidentiary support you need to supply to demonstrate distinctiveness when your application is examined. Much like a patent application, if the PVPO disagrees with you, it must notify you in writing and state the reasons, and you may then reply and ultimately appeal if you are unsuccessful.
ABOUT SCOTT LLOYD
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Scott Lloyd is a registered patent attorney who specializes in intellectual property counseling and commercialization work. He has served as a technology commercialization specialist and advisor to companies in a diverse array of markets, including biotechnology, pharmaceuticals, medical devices, food and beverage, specialty chemicals, technology, and engineering. In addition, Mr. Lloyd spent ten years as in-house general counsel to small and mid-sized companies, where he managed corporate matters and resolved commercial disputes in addition to intellectual property strategy, and now serves in the same capacity for entrepreneurial clients. He serves as counsel to small and mid-sized business owners seeking to implement growth strategies and succession plans.
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Jonathan Wachs provides strategic counseling and operational advice to clients in the areas of intellectual property, commercial transactions, and outsourced legal departments. As head of the firm’s Intellectual Property Group, Mr. Wachs works closely with clients to develop, register, analyze, enforce, and transfer intellectual property assets in a customized, cost-efficient, and highly effective manner. Additionally, he conducts intellectual property audits through which clients learn the nature and value of their intellectual property assets and the steps needed to protect such assets from misappropriation or dilution. As a business lawyer, he has successfully negotiated and completed several multimillion-dollar business transactions and has served as general counsel to several small and midsize businesses and organizations in various industries and professions.
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