To make technical corrections in patent law.

October 7, 2004

Mr. ISSA (for himself and Mr. TOM DAVIS of Virginia) introduced the following bill; which was referred to the Committee on the Judiciary

To make technical corrections in patent law.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Plant Breeders Equity Act of 2004'.

SEC. 2. FINDINGS.

Congress finds that--

(1) Since 1930, the Plant Patent Act has benefited the public by encouraging innovation and development of new varieties of asexually reproduced plants, including trees, shrubs, flowers, and fruit-producing plants.

(2) The United States is a signatory to the International Union for the Protection of New Varieties of Plants (UPOV) Convention; however, the plant patent system has not been modernized to incorporate important provisions of UPOV, placing breeders of asexually reproduced plants in a position of inequity with breeders of other types of plants in the United States and with foreign breeders.

(3) Closer harmonization of the plant patent system with UPOV will restore equity and ensure continued innovation and development of horticultural plant varieties.

SEC. 3. AMENDMENTS TO TITLE 35, UNITED STATES CODE.

(a) Novelty- Section 162 of title 35, United States Code, is amended--

(1) by striking the section heading and inserting the following:

`Sec. 162. Description, claim, novelty';

(2) in the first undesignated paragraph, by striking `No plant' and inserting the following: `(a) Description- No plant';

(3) in the second undesignated paragraph, by striking `The claim' and inserting the following: `(b) Claim- The claim'; and

(4) by adding at the end the following:

`(c) Novelty-

`(1) IN GENERAL- Except as provided in paragraph (2), no plant patent application shall be denied, nor shall any issued plant patent be invalidated, on the grounds that the invention was sold or otherwise disposed of.

`(2) EXCEPTIONS- Paragraph (1) shall not apply if--

`(A) more than 1 year prior to the date of the application for patent in the United States, the invention was sold or otherwise disposed of to other persons in the United States, by or with the consent of the inventor or discoverer, or the successor in interest of the inventor or discoverer, for purposes of exploitation of the invention;

`(B) except as provided in subparagraph (C), more than 4 years prior to the date of the application for patent in the United States, the invention was sold or otherwise disposed of to other persons in a foreign country, by or with the consent of the inventor or discoverer, or the successor in interest of the inventor or discoverer, for purposes of exploitation of the invention; or

`(C) more than 6 years prior to the date of the application for patent in the United States, in the case of a tree or vine, the invention was sold or otherwise disposed of to other persons in a foreign country, by or with the consent of the inventor or discoverer, or the successor in interest of the inventor or discoverer, for the purposes of exploitation of the invention.'.

(b) Plant Patent Grant- Section 163 of title 35, United States Code, is amended--

(1) by striking `In the case' and inserting the following: `(a) In General- In the case'; and

(2) by adding at the end the following:

`(b) Application- Subsection (a) applies equally to any plant that is not clearly distinguishable from a protected plant.'.

(c) Conforming Amendment- The chapter analysis for chapter 15 of title 35, United States Code is amended by striking the item relating to section 162 and inserting the following:

`162. Description, claim, novelty.'.

(d) Application- The amendments made by this section apply to--

(1) all applications for plant patents filed on or after the date of enactment of this Act, or pending on that date; and

(2) in the case of the amendments made by subsection (a), all plant patents in force on the date of enactment of this Act.

END