Notice Required for Infringement under the PVPA

In Syngenta Seeds, Inc., et al. v. Delta Cotton Co-Operative, Inc. (July 28, 2006) the Federal Circuit reiterated that the Plant Variety Protection Act ("PVPA"), 7 U.S.C. § 2541(a)(6), permits a finding of infringement only if the dispenser had notice that the seed it dispensed was a protected variety, either because it received the seed in marked form or because it had independent knowledge of the seed's protected status. Delta & Pine Land Co. v. Sinkers Corp., 177 F.3d 1343, 1355 (Fed. Cir. 1999). Because the trial court did not require Syngenta Seeds to prove that Delta both had notice and failed to provide this notice to the recipient of the dispensed seeds, the evidence before the jury was insufficient as a matter of law to sustain a finding of infringement.

Section 2567 of the PVPA also provides that an owner of a protected variety cannot recover damages for infringement if "the variety is distributed by authorization of the owner and is received by the infringer without" a label containing the words "Unauthorized Propagation Prohibited" or "Unauthorized Seed Multiplication Limited," unless the infringer has "actual notice or knowledge that propagation is prohibited or that the variety is a protected variety." Where the alleged infringer received the protected seed without the statutory label, the plaintiff has the burden to prove and demonstrate "actual notice or knowledge that propagation is prohibited" or that the seed is a protected variety.