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Saved seed: Legal or not?

Paul Goeringer for Progressive Forage Published on 01 March 2021
Seeds

As you begin to think about seed selection for the next growing season, it’s essential to consider not only an optimal variety for your area but also 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, but those days are distant memories. Today, due to a variety of intellectual property laws, producers may be limited to buying seed directly from an approved dealer to stay in compliance with the law.

Interpreting the law

U.S. patent law or the federal Plant Variety Protection Act (PVPA) protects a majority of forage varieties that producers use. Under patent law, the federal government patent grants an inventor the right to make, sell and use the invention for 20 years, exclusively. Saving patent-protected seeds for replanting is not allowed under patent law. 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 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, making 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 larger than initially planted. For example, if you harvested and saved 100 acres’ worth of an alfalfa seed in 2020, then in 2021 you can only use enough grass seed to replant no more than 100 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 requiring 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 plant 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 the seed will be replanted. If you can think of a way around this provision, more than likely someone else has probably tried it before. Courts have not looked kindly at creative ways around selling saved seed in the PVPA.

What to know

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 that all seeds sold, offered for sale or transported for planting purposes must contain a label or tag printed in English. In several states, 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. The unprotected seed label may be missing “protected variety” or a patent number on several labels. Checking the label before purchase allows a producer to know if the seed falls under either the PVPA or patent law or 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,” violate the PVPA and patent law. Other techniques 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 affect 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

Getty Images.

This is not legal advice.

Paul Goeringer
  • Paul Goeringer

  • Senior Faculty Specialist and Extension Legal Specialist
  • University of Maryland

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