Can I Save That Seed?

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Saving seed is a concept that has been around for thousands of years. We usually think of saving seed as a farmer setting aside seed from a prior year’s harvest for planting in future years. There is also the concept of setting aside seed from a prior year’s harvest, cleaning it, bagging it and selling it to other farmers. This is often called “brown bagging.”

As executive director of the Seed Innovation and Protection Alliance, I am regularly asked “when can I save seed” and “how much seed can I save?” The answer is, “it’s complicated.” Generally, the majority of seed cannot be saved due to various laws; however, there may be some limited occasions where seed may be saved in the United States.

Seed companies involved in research and development reinvest approximately 10 percent of sales into new innovations. With the cost of developing a variety around $1 million to $7 million over eight years depending on the crop, and the cost of commercializing a new trait estimated to be $136 million over 13 years, companies have a financial responsibility to their shareholders and customers.

In the United States, a number of legal systems protect seed, including patents, Plant Variety Protection (PVP) and contracts.

Patents

Specific seed varieties, characteristics and improvements may be protected by one or more U.S. patents. Administered by the U.S. Patent and Trademark Office, in general, a patent holder can prevent others from making, using, offering for sale and selling, or importing, the claimed invention in the United States. Most importantly, no exemption exists under patent law that allows a farmer to save seed.

Plant Variety Protection

PVP protection is one option for seed varieties. Administered by the U.S. Department of Agriculture, it’s used by developers of new varieties to restrict the use, marketing and sale of varieties.

However, unlike a patent, a PVP allows farmers to save seed in certain cases. The U.S. Supreme Court ruled in “Asgrow v. Winterboer” that U.S. PVP law allows a farmer to save enough seed to replant one year’s crop on their own acreage. “Brown bagging,” or selling the saved seed for replanting, is a violation of the law. It should be pointed out that a seed variety might have both PVP and patent protection, preventing the saving of seed.

When it comes to “how much” can be saved, the court in “Asgrow v. Winterboer” was fairly clear that a farmer can only save enough seed to replant one year’s crop on their own acreage.

Limited Use License

Furthermore, many seed varieties are also protected by contract or end user license agreements. Two common forms of contracts for seed varieties are bag/tag agreements and/or limited use agreements. Bag/tag agreements are contracts often placed on seed containers and/or invoices that typically restrict the use of the seed within the container once opened by the grower. Limited use agreements are between farmer and breeder and often require that seed from the variety can only be used to produce one commercial crop and cannot be used for planting, transferred or provided to any party for crop breeding, research or seed production.

No PVP, Patent Or License?

So, what if there is no PVP, patent or license protection associated with a seed or its technology? Then there might not be any restrictions to a farmer’s use of the seed in question. However, it is very important to do your due diligence to ensure that there are no restrictions. Keep in mind that U.S. patent law does not require the patent owner to label their product with a patent number.

So how does one know if the seed they are purchasing is protected?

• Talk to the seed dealer or seed company representative.

• Check the bag and tag labeling.

• Refer to your limited use/technology use agreement.

• Consult the seed company website.

For more information on the intellectual property protection associated with seed, visit the SIPA website at seedipalliance.com or contact James Weatherly at jamesw@seedipalliance.com.

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