When can a Farmer Legally Save Seed?

This post was inspired by a news report on Seedquest and a portion of the movie Food, Inc. that focused on Maurice Parr a traveling seed cleaner in the Midwest that was accused of assisting in the unlawful resale of patented seeds. Many people are attempting to save seed in these economic times as a way to cut cost, however there is some considerations you have to keep in mind regarding the legality of that action especially as more groups are enforcing their rights through U.S. patent laws or the Plant Variety Protection Act (PVPA).

In regards to patented seeds these are typically protected as Utility Patents, administered by the USPTO, which allows the patent owner to exclude others from making, using, offering for sale, selling, or importing, the protected seed for a period of 20 years. Diamond v. Chakrabarty, 447 U.S. 303 (1980), broadened the scope of patentability to "anything under the sun that is made by the hand of man," which included living organisms. An asexually reproduced plant, excluding tubers, can also be protected by a Plant Patent, also administered by USPTO, which gives the patent owner the right to exclude others from reproducing, selling, or using the plant for 20 years. The defenses, such as the experimental use exception, to patent infringement are narrowly tailored and will typically require great expense to present, so you are better off not attempting to save this seed at all. The main thing the farmer needs to know is the contract or license language that prohibits the saving of the seed, which should be heeded as any violation of this will constitute a breach of the license and actionable infringement.

The Plant Variety Protection Act, administered by the USDA, offers two exemptions to the granted exclusive rights of the certificate holder. The PVPA covers sexually reproduced seeds that are "new","distinct","uniform" and "stable", and grants the certificate holder the right to exclude others from selling, marketing, offering for sale, reproducing, consigning, exchanging, importing or using a variety in the production of a hybrid or different variety for 20 years. One exemption to the exclusive right is for breeders or researchers to use the seed in developing a new variety, and the other exemption is for farmers to save seed for replanting if they lawfully purchased the seed. This latter exemption does not give the right to resell the protected seed, but only for replanting for personal use, or get one "off the hook" for purchasing unlawfully sold seed. Please see the ways to identify the PVP seed has been certified and lawful by the Kansas Crop Improvement Association here.

Note: Please be careful, as US law allows double protection through a patent and PVPA certificate if the owner desires and the "invention" qualifies.

The saving of seed of the now limited Public Varieties, is of no consequence to the farmer as they are not afforded any protection unless there was some contract the farmer may have entered into himself for the purchase of the seed. However, this is highly unlikely. This seed can be saved, but please remember practical considerations such as the germination rate that will be of value to you that can be checked at the State Seed lab (Some states its an independent body, university, or the Crop Improvement Association) or can be handled by seed cleaners, like Maurice Parr, who will have the germination checked, clean out the debris from your seeds, and bag it for you.

Please remember form previous posts located on this blog that public varieties are much more limited, as research budgets have swell at the universities as the demand for technology has increased in the recent years, thereby increasing the amount of varieties gaining protection. In addition, groups that traditionally were not enforcing their rights are now beginning to bring suit and enter into hefty settlements as money is thinning.

To avoid potential trouble, please do a little homework on where you got the seed, whether it is protected, and what kind of protection the seed has: patent or PVP certificates, or both. In addition, check any contract you may have signed and its provisions regarding left over or second generation seeds.

North Dakota State Seed Commissioner warns of seed law violations.

As reported by North Dakota State University and Seedquest, the North Dakota State Seed Commissioner, Ken Bertsch, cautioned individuals to avoid seed law violations in the purchase and planting of protected varieties.

The prevalence of new technologies in the industry has led to more variety protection therefore, knowledge and adherence to seed laws becomes imperative for growers, seed conditioners and producers who maintain stocks of protected varieties of all types. Varieties protected by Plant Variety Protection (PVP) Title V can be sold only as a class of certified seed as will be designated by the individual states. Even those protected varieties outside PVP Title V purview, can only be sole with approval from the variety owner in the form of a license or some other IP rights granting agreement.

"In general terms, unless the seed being purchased is accompanied by a certified, registered or foundation class label or comes from a reputable dealer with authorization from the owner to market the seed, you shouldn't purchase and plant the seed," Bertsch says. "Brown-bagged seed isn't worth the risk and everyone involved in the transaction is a part of that risk pool."

As stated Bertsch cautioned to obtain seed through legal channels as it ensures all the proper rights are granted and applicable laws are applied. Brown-bagging or illegal transactions typically farmer-to-farmer does not have the ability to make these guarantees and can lead to fines levied by federal and state agencies from anywhere between $250 to $5000.

However, the kicker is the fact that the violation could potentially be used in civil infringement suit by the rights-holder of the illegal use of the protected variety. The damage award can be up to treble damages of the seed sold and grain derived from the planting. Seed Quest states that the violations of PVP and labeling laws have resulted in fines and fees upward of $50,000.

Bottom line – Learn the seed laws applicable to your enterprise, federal and state, and follow them as the initial fine may not be seem steep, but can quickly turn into much more. If you are found to be in violation of a seed law, please consult with counsel, preferably those familiar with the industry and agencies involved, in order to weigh out the options as there may be potential settlements with government agencies without an admission of guilt or some other more amicable alternative.