Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 5 (1995)

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Cite as: 513 U. S. 179 (1995)

Opinion of the Court

ties to others in a form that could be propagated without providing notice that the seeds were of a protected variety.1

The Winterboers did not deny that Asgrow held valid certificates of protection covering A1937 and A2234, and that they had sold seed produced from those varieties for others to use as seed. Their defense, at least to the 2541(1) and

1 At the time the infringement action was filed, 2541 provided in full: "Except as otherwise provided in this subchapter, it shall be an infringement of the rights of the owner of a novel variety to perform without authority, any of the following acts in the United States, or in commerce which can be regulated by Congress or affecting such commerce, prior to expiration of the right to plant variety protection but after either the issue of the certificate or the distribution of a novel plant variety with the notice under section 2567 of this title:

"(1) sell the novel variety, or offer it or expose it for sale, deliver it, ship it, consign it, exchange it, or solicit an offer to buy it, or any other transfer of title or possession of it;

"(2) import the novel variety into, or export it from, the United States; "(3) sexually multiply the novel variety as a step in marketing (for growing purposes) the variety; or

"(4) use the novel variety in producing (as distinguished from developing) a hybrid or different variety therefrom; or

"(5) use seed which had been marked "Unauthorized Propagation Prohibited" or "Unauthorized Seed Multiplication Prohibited" or progeny thereof to propagate the novel variety; or

"(6) dispense the novel variety to another, in a form which can be propagated, without notice as to being a protected variety under which it was received; or

"(7) perform any of the foregoing acts even in instances in which the novel variety is multiplied other than sexually, except in pursuance of a valid United States plant patent; or

"(8) instigate or actively induce performance of any of the foregoing acts."

In October 1992, Congress amended 2541, designating the prior text as subsection (a) and adding a subsection (b), the provisions of which are not relevant here. Curiously, however, the references in 2543 to the infringement provisions of 2541 were not amended to reflect this change. For clarity's sake, therefore, we will continue to refer to the infringement provisions under their prior designations, e. g., 2541(1)-(8), rather than their current designations, e. g., 2541(a)(1)-(8).

183

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