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A word of warning on saved seeds

Paul Goeringer for Progressive Forage Published on 31 October 2018
Warning

As many of you begin to think about seed selection for the next growing season, it’s important to consider not only an optimal variety for your area but also the types of legal protections limiting your use of saved seeds.

Many involved in agriculture remember a previous era when producers could trade or sell saved seeds to a neighbor. Today, due to various intellectual property laws, producers may be limited to buying seed directly from an approved dealer to stay in compliance with the law.

The majority of forage varieties producers use are protected under U.S. patent law or the Plant Variety Protection Act (PVPA). A federal government patent grants an inventor the right to exclusively make, sell and use the invention for 20 years.

Saving patent-protected seeds for replanting is not allowed under patent law, however, even for cover crop seeds. Seed companies selling patent-protected seeds often actively enforce their patent rights against producers who use saved seeds. When a producer violates a patent by saving seeds, federal law allows damages equal to a reasonable royalty for the use of the patent.

The PVPA provides a patent-like protection for novel plant varieties. Developers of new sexually reproducing plants (those reproducing by seed) can obtain a certificate from the USDA Agricultural Marketing Service’s Plant Variety Protection Office which makes it unlawful to grow or sell protected seed varieties without the certificate holder’s permission.

When saving seed, a producer can use only the amount of saved seed necessary to replant an area no bigger than initially planted. For example, if you harvested and saved 50 acres of grass seed in 2017, then in 2018 you can only use enough grass seed to replant no more than 50 acres.

If a producer violates the PVPA, then the certificate holder can seek damages in court. The PVPA allows for a court to compensate a certificate holder up to three times the actual damages. At the same time, many states have seed laws which may require additional fines on top of the damages owed to the certificate holder.

The PVPA does not allow a producer to sell saved seed to another party for replanting; in other words, a farmer cannot sell saved seed knowing the end user will be planting a crop.

Courts have broadly interpreted what selling is and have included trading seeds, gifting seeds, buying a standing crop to save for seed to replant, brown bag sales, bin-run sales and selling seed for “feed” when the producer knows seed will be replanted. Courts have not looked kindly on creative ways around selling saved seed in the PVPA.

How is a producer to know if a seed falls under patent law or PVPA? State laws often require seeds sold there to include an appropriate label. In most states, the law requires all seeds sold, offered for sale or transported for planting purposes must contain a label or tag printed in English.

In Maryland, for example, the label must include a common name or scientific name of each component over 5 percent, the origin of the seed, lot number or other identifier, percentage of seeds under 5 percent, percent by weight of inert matter, percent of weed seed and each kind of restricted noxious weed seed.

The label should include language such as “protected variety” or a patent number to make a producer aware of any existing protections on the seeds. Other states have similar labeling requirements on seed labeling. Checking the label before purchase will allow a producer to understand if the seed falls under either the PVPA or patent law, or is an unprotected variety.

Because the seeds sold in many states require a label, forage crop seeds sold must include a label. Older practices for selling seeds, such as selling seeds as “variety not stated,” violates the PVPA and patent law. Other practices such as selling seeds out of the bin would also violate the PVPA and patent law. These earlier practices now come with fines and penalties. Claiming the seed is “just a forage crop” is never a good defense.

As you select your seed for next year, keep in mind how the PVPA and patent law affects using saved seeds or unlabeled seeds for replanting. Violating the PVPA or patent law could open a producer to paying the seed developer for the violations. Before buying any forage crop seeds, make sure you check the label to determine your limits.  end mark

ILLUSTRATION: Staff illustration.

This should not be construed as legal advice.

Paul Goeringer
  • Paul Goeringer

  • Extension Legal Specialist
  • University of Maryland
  • Email Paul Goeringer

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