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What You Need to Know About Plant Variety Protection

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Posted May 31, 2003

In 1970, national legislation approved the Plant Variety Protection Act (PVPA). The purpose of this law was to promote the development of new varieties by allowing the variety owner to decide who markets the seed. This act also provided the opportunity for plant breeders to recoup monies spent on developing the variety and re-invest into their breeding programs. It has been estimated that improved seed genetics is responsible for as much as 65% of yield increase since the 1950s. In addition to increased yields, substantial advancements have been made in the areas of disease and pest resistance. Varieties have also been adapted to persist in various conditions, such as acid soils. The development of herbicide tolerant and resistant varieties has made weed control a simple process. Under the 1970 act, farmers were allowed to save seed for their own use and sell that same amount to another farmer. This act applied to all varieties protected prior to April 4, 1995.

In 1994, the PVPA was amended to prohibit the sale of farmer-saved seed without permission from the owner. It also required that seed be sold by variety name. Length of protection was extended to 20 years for most varieties and up to 25 years for trees and shrubs. Farmers can still save seed for personal use. The amount saved cannot be more than the amount needed to plant his land holdings (owned or leased). This amendment also broadened protection to include root-reproduced plants, varieties whose parentage is from another protected variety and any material harvested of the variety.

Some varieties released under PVPA may have further limitations. Title V mandates that seed must be sold under the variety name and be classified as certified. Seed may only be labeled as certified by meeting the standards of an official seed certifying agency. There is one more law that is important to remember. Any variety that is patented or contains a patented gene cannot be sold by a farmer or saved by the farmer for planting on his land holdings. Examples include Roundup-Ready soybeans and novel endophyte fescue.

An article in the April 18, 2003, issue of Delta Farm Press titled "Flouting seed ownership rights can be costly" vividly outlines the consequences of illegally selling protected varieties. C.D. Nolan, Jr., a lawyer from Stuttgart, Ark., said, "Science and money have created a world-class platform for development of germplasm that can be of great benefit to society." But scientists responsible for the development of such varieties expect to be paid royalties for their research, and those who illegally sell protected or patented varieties are exposing themselves to litigation in the courts. The owner of the protected or patented varieties is subject to be compensated for lost profits, expected profits, attorney fees and all other costs associated with the action. Damages will be paid on all seed, sold or not. The variety owner is also given the right to injunction, which would shut down the whole warehouse. Farmers who buy the illegally sold seed are subject to litigation. Even blended seed containing a protected variety is illegal.

This article is not intended to scare anyone, but instead to inform those who hold back seed to sell or use on their own operation. Be certain that any seed sold is not protected. Public seed can still be saved and sold as variety not stated (VNS). In addition, these laws do not apply to hybrid seed, only pure varieties. I realize that many producers are always looking for a good deal on quality seed. The label on the seed bag will identify if it is protected and state which act protects it. It would be wise to visit with either Oklahoma or Texas Foundation Seed prior to selling seed from the farm or purchasing seed from another farmer. If caught, it could be a costly mistake. Listed in Figures 2 and 3 are several small grain varieties from both Oklahoma and Texas Foundation Seed along with their protection status. For more information on the protection status of other crops, contact Oklahoma Foundation Seed Stocks (www.oklahomaseed.com/) and/or Texas Foundation Seed Service (http://tfss.tamu.edu/).

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