Abilene, Texas
February 5, 2004
Possession isn't necessarily
nine-tenths of the law, especially if the purchase is a wheat
variety protected by the United States
Plant Variety Protection Act. This misunderstood and
often-ignored law may soon become more stringently enforced,
largely due to the stepped-up use of DNA plant testing.
Gary Bomar, Texas Cooperative Extension agricultural agent for
Taylor County, said the practice of "catching" or keeping some
of the current crop's production for planting the following
season has long been practiced in the farming business.
"That's not a problem in itself," he said. "The law says farmers
may save a limited amount of a protected variety seed for
replanting, but they can't sell planting seed to anyone without
permission from the owner. Of course, if the seed is not a
protected variety, there are no restrictions.
"Variety infringement cases are popping up all over the United
States, and there will be one here one day. We've got too much
wheat grown here for there not to be. It's already happened in
Wichita Falls. We in Extension are always talking about an
educational opportunity. But the real education in this case
will be when a producer out here gets fined about $35,000.
That's going to educate them pretty quick."
JW "Dub" Vinson owns Abilene Ag Service and Supply. He also
holds the rights to WinMaster, a PVPA wheat variety that's
popular among Central West Texas producers.
Vinson explained the scenario: "Say a farmer plants some of this
WinMaster seed, a protected variety, and that wheat did pretty
well for him. So he says, ‘Well I'll just catch some of that
seed and sell it to my neighbor.' Abilene Ag is entitled to a
royalty from that sale. If I don't get paid that royalty or give
permission for that specific sale, then it's against the law. In
fact it's a federal offense.
"That's the real kicker in it. It's not a misdemeanor, it's a
federal offense and they can carry you to the federal
courthouse. And the royalty owner wins them all."
Vinson said they win them all because DNA testing is so accurate
now that a person can plant a protected variety, sell the
resulting seed and wheat heads pulled from the subsequent crop
can be traced to the original parent crop.
"You can tell them it's against the law," said Vinson, "and
they'll say ‘Why, I bought that seed. That's my seed and I'll do
what I want with it.'
"But they know it's a protected variety. It's on the tag. They
have to sign a form when they buy it. If a farmer brings wheat
seed here for us to clean and treat, they've got to specify what
variety it is. If they tell me it's a protected variety they
want to clean and sell to somebody else, I tell them I won't
process it. They'll have to go somewhere else."
Bomar summed up the problem by saying: "Even if you come to my
farm and buy a PVPA wheat straight from the combine and plant it
without paying the royalty, then we're both guilty - even if
you, the buyer, didn't know the wheat was a protected variety.
Granted, I should have told you, but even if I didn't we're both
still technically liable.
"This is a serious matter that's going to result in some mighty
unhappy folks sooner or later if things don't change."
Quick Facts concerning the PVPA found on the Web at
http://www.ams.usda.gov/science/pvpo/PVPindex.htm
state:
- The PVPA provides developers
of new varieties of plants patent-like rights that protect the
reproduction and distribution of their varieties.
- Varieties that are protected
under the PVPA can be sold as seed stocks only with permission
of the certificate holder and in some cases, only as a class
of Certified seed.
- Varieties that are protected
must have labels on the seed containers indicating the type of
protection.
- Farmers may save a limited
amount of seed for replanting, but cannot sell it to anyone
without permission of the owner.
For more information on the PVPA
contact:
Plant Variety Protection Office
Dr. Paul M. Zankowski
Commissioner
10301 Baltimore Ave.
Room 401
National Agricultural Library Build.
Beltsville, MD 20705.
The telephone number is (301) 504-5518;
email address is
paul.zankowski@usda.gov
Writer: Steve Byrns (325)
653-4576, email:
s-byrns@tamu.edu |