Legislation Aims to Rein in Abuse in Commodity Checkoff Programs

A bipartisan bill was introduced in the Senate aimed at overhauling commodity checkoff programs to eliminate (or reduce) improper use of checkoff funds, especially in lobbying activities. Checkoff programs were originally designed to fund research and generic promotion for a commodity. However, the “Opportunities for Fairness in Farming Act of 2023,” states that “checkoff programs have repeatedly been shown to use funds to influence policy directly or by partnering with organizations that lobby,” despite broad prohibitions against using funds to influence legislation. It also indicates that “the unlawful use of checkoff programs funds benefits some agricultural producers while harming many others.” The bill includes provisions that will prohibit checkoff boards from:

• contracting with any party that acts to influence government policy or lobbying;
• engaging in conflict of interest transactions;
• engaging in anticompetitive activities;
• engaging in unfair or deceptive practices; and
• any actions that would disparage another agricultural commodity.

For a bit of perspective, at least some checkoff programs would qualify as big business. In 2022, the United Soybean Board reported over $141 million in checkoff revenue and projected a $174 million budget for 2023. The Cattlemen’s Beef Board reported over $43 million in checkoff revenue for 2022.

BASF Shutters Hybrid Wheat Development for North America

​BASF announced last week that it was closing its hybrid wheat development program for North America but will continue its efforts for the European market. High development costs for hybrid seed compared to lower potential returns are part of the reason for the withdrawal.
​The news was disappointing to US and Canadian wheat producers and processors, with many groups expressing concern about declines in wheat research and variety development. In an interview with World Grain, Paul Morano, Syngenta’s head of North American cereals, indicated that wheat remains a leading crop in Europe and yields there are much higher, in the 100 to 150 bushel range. This makes the European market more attractive for wheat variety development. Despite concern among wheat growers that the U.S. is slowly losing its competitive edge in wheat, Syngenta has remained at the front of efforts to develop hybrid wheat and has launched hybrid varieties on a limited basis in the Dakotas and Minnesota.

Federal Circuit Decides Unique Patent Issue for Plants

The Federal Circuit Court of Appeals recently upheld a decision by the U.S. Patent and Trademark Office denying utility patent protection for an ornamental plant because it was in public use more than 1 year before the patent application. WinGen LLC filed a reissue application for an ornamental Calibrachoa plant known as “Cherry Star” which is similar to a petunia.

The patent examiner rejected the application, due in part to the display of the plant at a private Home Depot event. Attendees of the event were given a handout for Cherry Star which included a picture and a description of the flower. Attendees were under no confidentiality obligations regarding what they had seen.
WinGen argued that since event attendees did not receive cuttings, seed or plant tissue, they were not in possession of all of the claimed features of the plant (its genetics) and therefore the event was not a public use of the invention. The Court noted that the case presented a unique question because “[n]one of the [Court’s] significant public use cases . . . involved an invention whose intended purpose was ornament.” Since the only use of Cherry Star was as an ornamental flower, display of the plant at the Home Depot event was a public use for its intended purpose. Thus, it was ineligible for a patent because it was already in public use. The case is In re WinGen LLC, 2023 WL 1459288.