The Plant Variety Protection Act, initially enacted in 1970 and reworked with a bit more teeth in 1994, for years was not aggressively enforced.
That's no longer the case. “It is being enforced,” says Gaylon Morgan, Texas Cooperative Extension small grains specialist at College Station. Morgan discussed the PVPA during the recent annual Ag Tech Conference at Texas A&M Commerce.
Morgan says penalties for violating provisions of the Plant Variety Protection Act (considered a misdemeanor) range from a fine of about $2,000 from the Texas Department of Agriculture to civil penalties that may go as high as hundreds of thousands of dollars. The latter result from civil suits brought by seed companies protecting their property rights under the PVPA, Morgan says.
The law prohibits farmers from saving seed from protected variety and selling that seed to other farmers.
“Farmers can save and replant seed of protected varieties but only for use on their own holdings, either rented, leased, or owned acreage,” Morgan says. Varieties protected by the 1970 law allowed limited sales. That changed in 1994 to allow sales only with permission of the variety owner.
Morgan says seed companies need variety protection to help fund research and development of improved varieties.
“It takes as much as $1 million and 10 to 14 years to develop a new variety.”
He says the act provides even more protection to patented crops. “Farmers may not save, clean, condition or sell any seed protected by a utility patent,” he says. Clearfield wheat is about the only small grain protected under those provisions and “we don't use much Clearfield wheat in Northeast Texas,” he says.
Most wheat varieties currently grown in the Southwest fall under the PVPA umbrella. “We may still plant a few varieties, developed 18 or 20 years ago that are not protected,” he says. Some university varieties may not be protected but most University breeding programs now put new varieties under the PVPA.
“Oklahoma State University did not protect most of their varieties until two or three years ago,' Morgan says. “The University of Georgia has some soft wheat varieties that are not protected.”
He says it is an infringement of the PVPA for growers to “sell, offer, deliver, consign or advertise protected wheat varieties. It's also illegal to sell a protected variety without informing the buyer. And it's illegal to induce a third party to commit any of the above infractions.”
Morgan says science makes identifying a protected variety relatively easy. “Companies can determine the variety by DNA testing, ” he says. “There are even forensic agronomists around.”
Morgan says some of the legalities of the act may seem confusing but the crux of the law is that farmers can save enough seed for their own use. He recommends that growers who buy seed they think is not protected get documentation from the seller. “Keep records for three or four years and do all within your power to stay within the law.”
Seed companies have an obligation to protect their investments, he said, but weigh each infringement on a case by case basis and may be more lenient if farmers have done their best to abide by the law.
Protected varieties must be sold by variety name and as a class of certified seed. “It's the seller's responsibility to tell the buyer that a seed is a protected variety,” Morgan says.
Problems with the law include occasional shortages of certified seed to plant acreage in Texas. That's why farmers often save seed.
“Some growers say they will no longer grow varieties under the PVPA. But that limits their options and eliminates a lot of the newer, higher yielding, disease resistant varieties,” he says.
“There is nothing wrong with growing older, non-protected varieties, but farmers may not obtain as high yields.”
He says growers who store seed in a commercial elevator or a cooperative for planting may run into difficulties with variety contamination and could be in violation of the law. “Commingling of protected varieties leads to infringement of PVPA because the variety purity and identity is essentially lost.
“The seed industry needs to be profitable,” Morgan says, “so they can invest in better varieties and higher yield potential. Universities have fewer financial resources available for variety development and protecting their varieties allows some royalty money to return to develop new, higher yielding varieties for farmers.”