Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 6 (1995)

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184

ASGROW SEED CO. v. WINTERBOER

Opinion of the Court

(3) charges, rested upon the contention that their sales fell within the statutory exemption from infringement liability found in 7 U. S. C. 2543. That section, entitled "Right to save seed; crop exemption," reads in relevant part as follows:

"Except to the extent that such action may constitute an infringement under subsections (3) and (4) of section 2541 of this title, it shall not infringe any right hereunder for a person to save seed produced by him from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section: Provided, That without regard to the provisions of section 2541(3) of this title it shall not infringe any right hereunder for a person, whose primary farming occupation is the growing of crops for sale for other than reproductive purposes, to sell such saved seed to other persons so engaged, for reproductive purposes, provided such sale is in compliance with such State laws governing the sale of seed as may be applicable. A bona fide sale for other than reproductive purposes, made in channels usual for such other purposes, of seed produced on a farm either from seed obtained by authority of the owner for seeding purposes or from seed produced by descent on such farm from seed obtained by authority of the owner for seeding purposes shall not constitute an infringement. . . ." 2

2 Congress has recently amended this section by striking from the first sentence the words " 'section: Provided, That' and all that follows through the period and inserting 'section.' " Plant Variety Protection Act Amendments of 1994, Pub. L. 103-349, 108 Stat. 3136, 3142. That amendment has the effect of eliminating the exemption from infringement liability for farmers who sell PVPA-protected seed to other farmers for reproductive purposes. That action, however, has no bearing on the resolution of the

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