Guest column: $2.975M settlement reached for Plant Variety Protection Act infringement

Neal Foster
Executive Director, South Dakota Crop Improvement Association

An investigation by Iowa State Seed Inspectors resulted in the South Dakota Board of Regents receiving a $2,975,000 judgement against an Iowa farmer, James Fevold. The judgement was over the illegal selling of oat varieties owned by South Dakota Board of Regents. The lawsuit is ongoing with regard to other seed farmers and sellers named in this case. The oat varieties in question were developed by the SDSU oat breeding program and had Plant Variety Protection Act (PVPA) coverage with Title V. Violators of the PVPA can be held responsible for unauthorized use of the variety, owing any monetary loss to the variety owner. As this case shows, this amount of liability can be substantial.

The PVPA gives legal protection to the developers of plant varieties that are reproduced from seed. Varieties protected through certification under Title V can only be sold as a class of certified seed. PVP was put into law in 1970 as a way to encourage the development of new varieties while giving the developers protection for their work for a period of twenty years. Since the early 1980’s all SDSU developed varieties of spring wheat, winter wheat and oats have applied for and received this protection.

Benefits of PVPA, once granted, give the certificate owners exclusive legal rights to market and to exclude others from selling their varieties. The legal protection for breeders and inventors promotes the development of new varieties that can increase yield and crop productivity, increasing farmer’s income and expanding trade and economic growth. Other benefits from PVPA include provisional protection granted upon application, offers protection when the varieties are grown in another country, and a user friendly application (no need for legal counsel when applying). There is no annual maintenance fee and the applicant conducted field trials are permissible. More information on PVPA can be found at https://tinyurl.com/y3dmvduh.

The litigation and judgement described above are not meant to discourage the proper use of SDSU varieties. Legally purchased seed can be replanted by the purchaser on their own holdings but cannot be sold, bartered or traded for any seeding purposes unless certified by the South Dakota Certification Agency.

PVPA protected varieties with Title V can be used in cover crop mixtures but must be a class of certified seed. While this would seem to add cost to the cover crop mixture it could actually save your operation money. Certified seed is field inspected and tested. It is required to meet seed quality standards before it can display and sold with a blue certified tag. The businesses putting these mixtures together will need to get a copy of the permission letter stating that these varieties can be used in mixtures. With the certified tag your chances of getting unwanted weeds or other crops from the mixture are greatly reduced — thus saving your operation from unwanted pests in the future.

Caution should be taken when the seed is labeled VNS (variety not stated) or NVS (no variety stated). In the case of small grain varieties, all small grains must be sold by variety name in South Dakota. Once a variety is released by name, it must always be sold by name, even after PVPA coverage has expired.

When the original samples from the case mentioned in this article were taken, the true variety identity was not yet known. Varietal identification has made great advances in recent years. Today, with the use of electrophoresis or high performance liquid chromatography, variety determination can be known in a matter of hours. Both of these methods use the proteins that are specific for each variety to determine the identity. The identity of the varieties in question in the lawsuit were determined to be SDSU-released varieties, giving information for the case to proceed.

The need for investment in small grain breeding programs is essential for their continuance. The SDSU small grain releases all have royalties associated with the varieties. The money collected is reinvested into the breeding program for the development of new varieties and the infrastructure needed by these programs. The new varieties have higher yield capability and better disease resistance than what is currently available. This provides your operation with better genetics and higher profitability. When the PVPA is violated, it bypasses this support and hurts the breeding programs and the availability for you to access the most current genetics. For questions on this article or seed certification, please contact the South Dakota Crop Improvement Association at 605-688-4606 or www.SDCrop.org.