The U.S. Department of Agriculture (USDA) Plant Variety Protection Office (PVPO) has waived the deposit requirement for asexually reproduced plants until further notice due to "continued and ongoing technical challenges and infeasibilities." The announcement specified that any future requirements for a deposit will not be applied retroactively. As of this writing, there are no hints of a date for such potential future requirements.
This change is now reflected in the requirements for a Plant Variety Protection (PVP) certificate listed on the PVPO website:
"The deposit of propagating material for asexually reproduced plant varieties is not required. The applicant must sign a declaration that the propagating material will be maintained at a specific location, subject to PVPO inspection, and if requested by PVPO, the applicant has three months to provide the propagating material or risk losing protection."
The availability of PVP rights for asexually reproduced plants is still relatively new in the United States, as the PVPO only started accepting applications for asexually reproduced plants as of January 6, 2020. Initially, the deposit requirement was delayed until January 6, 2023, due to feasibility concerns. With no viable solutions at the end of the three-year delay, the decision to waive the deposit requirement provided a timely resolution. Now—more than three months out from the initial expected date for deposit requirements for asexually reproduced plants, and more than three years out from the entrance of asexually reproduced plants into the PVP system to begin with—there is less uncertainty on how such deposits may be handled. Although deposits for asexually reproduced plants may still be required at some point in the future, the lack of retroactive application of such future requirements represents at least a reliable interim reprieve for producers of these plants.
The prior uncertainty surrounding deposit requirements for asexually reproduced plants was likely a deterrent for many potential applicants considering PVP protection, especially since a deposit is not formally required to obtain a plant patent for asexually reproduced varieties. Without the cost and technical challenges associated with a deposit, PVPs for asexually reproduced plants may soon enjoy more widespread popularity.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
© Morrison & Foerster LLP. All rights reserved