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Protected wheat varieties woes - what you don´t know can hurt you

09.02.2004

Possession isn’t necessarily nine-tenths of the law, especially if the purchase is a wheat variety protected by the 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 ispaul.zankowski@usda.gov