7 U.S.C. § 2425: Benefit of earlier filing date

Summary

You get the earlier foreign filing date for a U.S. plant variety application if the U.S. filing is for the same variety, based on the same breeder’s rights, and is filed within 12 months of the first foreign filing date (not counting the foreign filing day). You must say which foreign application you rely on in the U.S. filing or add that information later, and you must give any copies or translations if the Secretary asks. You can supply other needed documents during a 2-year period that begins when the 12-month priority time ends, or for another period the Secretary sets if the foreign claim was rejected or withdrawn. Events that happen during the priority time (like someone else filing or using the variety) cannot be used to reject your U.S. claim or create third‑party rights. A later U.S. application by the same person (or predecessor) can keep the earlier U.S. filing date if it is filed before the certificate issues or the first proceedings end and it specifically refers to the earlier filing. A later application alone does not prove that a newly described trait existed at the time of the earlier filing.

Title 7, §2425

Agriculture, Source: USLM XML via OLRC

(a)(1)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, not including the date on which the application is filed in the foreign country.

(2)No application shall be entitled to a right of priority under this section, unless the applicant designates the foreign application in the application filed in the United States or by amendment thereto and, if required by the Secretary, furnishes such copy, translation or both, as the Secretary may specify.

(3)(A)An applicant entitled to a right of priority under this subsection shall be allowed to furnish any necessary information, document, or material required for the purpose of the examination of the application during—

(i)the 2-year period beginning on the date of the expiration of the period of priority; or

(ii)if the first application is rejected or withdrawn, an appropriate period after the rejection or withdrawal, to be determined by the Secretary.

(B)An event occurring within the period of priority (such as the filing of another application or use of the variety that is the subject of the first application) shall not constitute a ground for rejecting the application or give rise to any third party right.

(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 the predecessor in title of the person, 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.

Notes & Related Subsidiaries

Editorial Notes

Amendments

1994—Subsec. (a). Pub. L. 103–349, § 5(1), designated first sentence as par. (1) and second sentence as par. (2). Subsec. (a)(1). Pub. L. 103–349, § 5(2), inserted before period at end “, not including the date on which the application is filed in the foreign country”. Subsec. (a)(2). Pub. L. 103–349, § 13(i)(1), substituted “in the application filed in the United States” for “in his application”. Subsec. (a)(3). Pub. L. 103–349, § 5(3), added par. (3). Subsec. (b). Pub. L. 103–349, § 13(i)(2), substituted “the predecessor in title of the person” for “his predecessor in title”.

Statutory Notes and Related Subsidiaries

Effective Date

of 1994 AmendmentAmendment by Pub. L. 103–349 effective 180 days after Oct. 6, 1994, see section 15 of Pub. L. 103–349, set out as a note under section 2401 of this title.

§2425 Benefit of Earlier Filing Date