Saving Seed – A Checklist

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Intellectual property protection for seed varieties ushered in an era of great benefits – herbicide tolerance, insect resistance, healthy oil profiles, longer shelf-life, drought tolerance – the list goes on.  Yields also increased dramatically. These innovations probably would not have occurred without intellectual property protection giving the seed developer the ability to limit uses of the seed – particularly saving seed.

Saving seed to replant next season – a simple question that receives far too many dazed and confused answers.  Few issues generate as much confusion as the ability to save a particular variety.  The standard practice of seed saving – particularly in cotton, soybeans, and wheat – largely faded into history once grower licensing of patented traits became the new normal. 

Changes in the marketplace over the last few years has resurrected the issue of saved seed.  Patent expiration for the popular first-generation Roundup Ready trait generated quite a bit of buzz.  New varieties are being released with the announcement that they can be saved.  Growers are looking for more options to fit their farms – conventional, organic, etc.  The result is marketplace of old and new varieties, old and new traits, and any number of licenses for growers, distributors, and sellers. 

So how do you know what can and can’t be saved?

The first question that must be answered is whether the variety is protected by an intellectual property right – either Patent or a Plant Variety Protection Certificate:

  • If the answer is “No,” then you need only look at the sales contract for restrictions.  If there are none, then the seed can be saved.
  • If the answer is “Yes,” then you must dig further and determine if a License is required to plant (i.e., “use”) the particular seed variety at issue.

If a License is required, then you have to look for a specific restriction in the license:  Is the use of the seed restricted to the production of a single crop? 

  • If the answer is “No,” then it can be saved for replanting.
  • If the answer is “Yes,” the seed variety can’t be saved.

It doesn’t matter whether the seed is protected by a Patent or a Plant Variety Protection Certificate since seed protected by either of those intellectual property rights can be sold outright, without restrictions – a legal concept known as exhaustion.

Below is a simple checklist to help you sort through the confusion:

  • Look at the seed bag or bag tag for Patent or PVP Certificate numbers – if the seed is protected, the specific patents or PVP certificates will usually be printed somewhere on the bag or bag tag.
  • For PVP protected varieties, you can check the list of PVP Protected varieties maintained by the USDA’s Plant Variety Protection Office:

https://ams.usda.gov/services/plant-variety-protection/issued-certificates

  • Ask the seed dealer – often times the dealer will be able to check online databases for licensing
  • Did you have to sign a written license or go to a web site (e.g., AgCelerate  https://agcelerate.com/Home ) and electronically sign a license for the variety?  If, so make sure to look it over for single crop restrictions.
  • Did you get it from another grower?  Be careful here – if the grower licensed the variety, you need to know what the license allows and make you get the correct variety.

Why does it matter?  Planting saved seed that is restricted to a single crop exposes you hefty civil damages from infringement and contract breach.  In some cases, treble damages, attorney’s fees, and costs are also at stake.  This kind of litigation is time-consuming and costly.  You may also lose the crop.

We draft licenses for clients that protect their intellectual property and communicate clear instructions for allowable uses.  We also help growers determine how to sort through license obligations and what they can do with their seed and crops.

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