concurring in the denial of rehearing en banc.
[Filed March 29, 1993]
Because Asgrow Seed Co. v. Winterboer, No. 92-1048 (Fed.Cir. Dec. 21, 1992), correctly interpreted the Plant Variety Protection Act, this court properly declined to rehear the case en banc. The Act has a vital and important purpose:
to provide the indicated protection for new varieties ... so as to afford adequate encouragement for research, and for marketing when appropriate, to yield for the public the benefits of new varieties.
7 U.S.C. § 2581 (1988) (emphasis added). This court in Asgrow acknowledged and respected that purpose.
Section 2543, the crop exemption, helps define “the indicated protection” of the Act. The exemption permits farmers to save, use, and sell seed. 7 U.S.C. § 2543 (1988). The exemption specifically excludes (and thus farmers may not engage in) sexually multiplying seed as a step in marketing. 7 U.S.C. § 2541(3) (1988).
As used in the Act, marketing is not simply selling. The Act uses both words.* *479The Act prohibits “sexually multiplying] the novel variety as a step in marketing.” Id. The Act permits, under specified circumstances, selling. 7 U.S.C. § 2543. The Act states:
[I]t shall not infringe any right hereunder for a person to save seed ... for sale as provided in this section....
Id. Indeed if selling and marketing were synonymous, then much of the crop exemption would have no meaning. The Act, however, includes a crop exemption to permit farmers to make brown bag sales.
The district court erred in reading an ensuing crop limitation into the crop exemption. The Act does not limit the amount of seed a farmer may sell to the amount necessary to plant another crop. The Act does not say a farmer may sell seed “saved ... for seeding purposes.” The Act says a farmer may sell seed “produced by him from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes.” Id. Under normal rules of syntax, “for seeding purposes” modifies “obtained.” Three different clauses of the crop exemption feature the words “for seeding purposes” as modifiers of “obtained.” At no place in the exemption does “for seeding purposes” modify “saved.”
The same section of the Act that prohibits "sexually multiplying] the novel variety as a step in marketing” also prohibits separately "sell[ing] the novel variety, or offer[ing] it for sale.” 7 *479U.S.C. § 2541(1), (3). Selling is different from marketing. Although the selling subsection is subject to the crop exemption, the marketing subsection is not. Section 2543 makes this distinction precisely because the crop exemption permits, under specified circumstances, brown bag selling.