PVPA Not Infringed When Seller Lacked Knowledge

Rewritten Aug 1:Softred

Syngenta Seeds v. Delta Cotton (Fed. Cir. 2006).

In a case involving a variety of soft winter wheat, the CAFC has effectively reversed a jury’s finding of infringement and damages under Section 2567 of the Plant Variety Protection Act (PVPA) because the accused seed seller did not have proven knowledge that the seeds were protected. 

Here, Delta was reselling seeds that had been provided by local farmers.  Delta’s apparent "don’t ask don’t tell" policy with regard to the variety of seed enabled it to escape liability under the PVPA. 

Lanham Act: Syngenta also accused Delta of "reverse passing off" because Delta was selling the Syngenta variety of seed under the Delta Cotton name.  Reverse passing off is generally thought of as "misrepresenting someone else’s goods or services as [your] own." Dastar.

The CAFC agreed with Syngenta that reverse passing off has no scienter requirement and thus proof of Delta’s knowledge would not be required.  However, Syngenta did not show proof that the misidentification of goods caused any harms to Syngenta’s business or mark.



6 thoughts on “PVPA Not Infringed When Seller Lacked Knowledge

  1. 6

    … or until Sygenta (or Monsanto) invents

    1. a means to stamp seed husks with an assayable enzyme marker – unique to the seed lot. Maybe something transgenic from another biological kingdom?;

    2. a means to rapidly assay seed husks at the point of purchase / sale; and

    3. an incentive for seed dealers to perform the assays.

  2. 5

    I don’t think anyone claimed that Delta Co-op was taking advantage of the crop exemption. Knowledge is a CRITICAL issue in the PVPA, as, without notice, it is impossible to know if you have protected seed on your hands. Syngenta can, and should, aggressively pursue those who fail to tag protected seed, but those who resell without knowledge should be protected. At least until we find a way to “stamp” seed with a PVPA certificate number. 🙂

  3. 4

    This decision completely overlooks Section 2543 of the PVPA (crop exemption). That section states that “A bona fide sale for other than reproductive purposes, made in channels usual for such other purposes, of seed produced on a farm … shall not constitute infringement.” This allows a farmer to sell his harvest as grain. However, the section goes on to state that “A purchaser who diverts seed from such channels to seeding purposes shall be deemed to have notice under section 127 [7 USC 2567] that the actions of the purchaser constitute an infringement.” Delta Co-Op diverted the wheat from non-reproductive purposes to seeding purposes and should have been deemed to have notice. Case closed.

  4. 3

    FWIW, the opinion also seems a bit confused,immediately under Part II.A., about the difference between 35 USC and 7 USC.

    Somewhat more substantively — the opinion, especially in footnote 2, suggests a possible solution to the troubling Schmeiser v. Monsanto “pollen drift” inadvertent infringement scenario.

  5. 1

    Your headline is (embarassingly) mistaken. A PVPA certificate is not a “plant patent.”

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