Amarillo, Texas
February 11, 2005Picking
up a load of elevator-run seed wheat used to be a common
practice, but today it could be a costly one - and not just for
the producer. That's because the
Plant Variety Protection Act is being enforced.
An elevator can't sell multiple
protected varieties of wheat mixed together as bin-run seed
without violating the act, said Dr. Gaylon Morgan,
Texas Cooperative
Extension small grains specialist in College Station.
Morgan, speaking at the Texas
High Plains Grain Elevator Workshop on Tuesday here, said anyone
-- from the producer to the seed cleaner to the marketer -- can
be brought into a civil suit.
The law protects the
intellectual property rights of developers of new varieties of
plants.
As it was written in 1970, the
act allowed a farmer to save enough seed to plant on his own
land or rented land or sell that amount of seed to a neighbor if
his plans changed.
In 1994, the law changed.
Farmers can no longer sell saved seed to anyone without
permission from the variety owner. Also, Title V of the Federal
Seed Act specifies that varieties must be sold by variety name
and only as a class of certified seed.
Wheat seed of a protected
variety sold with the label "Variety Not Stated" or as "brown
bag seed"also violates the Plant Variety Protection Act, Morgan
said.
Enforcement of the PVP Act in
Texas, Oklahoma, Arkansas and several other states landed
several individuals, including sellers, seed conditioners and
buyers, in court last year, he said.
Damages awarded by a court must
at least compensate a variety developer for the infringement,
but the court can award up to triple damages when the violation
is found to be willful, according to the regulation.. In
addition, violation of any part of the Federal Seed Act,
including Title V, is a misdemeanor punishable by a fine not to
exceed $2,000, Morgan said.
It's a chance Attebury Grain,
headquartered in Amarillo, doesn't take -- not since the
enforcement started. Stephen Tillery, a member of the Tri-State
Chapter of Grain Elevator and Processing Society, said his
company now has a seed company that sells all of its seed.
"Elevators sell elevator-run
wheat and the farmer just picks it up, but now if it is sampled
and has a protected variety in it, it's a problem for the
elevator and the farmer," he said.
While the elevator still custom
cleans wheat for farmers, producers must supply information to
ensure they are within the regulations of the law, Tillery said.
The bin-run that contains a
protected variety can't be sold for graze-out-only purposes or
for a cover crop without violating the law, Morgan said. It can
be sold for animal feed, but he recommended the elevator get
documentation from the buyer that it would not be used as seed.
Any patented seed, such as
Clearfield wheat or Roundup Ready crop, cannot be kept by the
individual or resold under any circumstances, Morgan said.
The purpose of the protection
act is to encourage development of non-hybrid varieties of
self-pollinated crops, such as wheat, he said.
New crop varieties take about
$1 million and 10 to 14 years to develop. This allows the
companies to recoup their investment, Morgan said.
Most varieties grown or
released since the mid-1990s are protected. Virtually all
varieties that are currently being released by the industry or
universities are protected, he said. If a variety is older than
18 to 20 years, it probably is no longer protected.
To find out if a variety of
seed is still protected, go to
www.ars-grin.gov/cgi-bin/npgs/html/pvplist.pl, Morgan said.
A third party, such as an
elevator, can clean and condition a reasonable amount of seed
for a farmer as long as the seed will be planted by the farmer.
Morgan said elevator operators who do this might want to get a
document from farmers stating the seed does not violate the laws
or patents. |