Farmer Saved Seed -- What Is Legal And What Is Not - Updated

Image of wheat ready to be harvested. Image by Susan Thompson via flickr

By Paul Goeringer and Dale Morris

This is not a substitute for legal advice.  See here for the site’s reposting policy.

Introduction

Until very recently, most wheat varieties sold in Maryland were protected under the Plant Variety Protection Act (PVPA). That is no longer the case. Currently, 80–90 percent of all wheat varieties sold in Maryland are protected under U.S. patent law. While PVPA protection allowed growers to save seed for use on their holdings (but not for sale), U.S. patent law prohibits saved seed entirely. Farmers saving U.S. patent-protected seed can face patent infringement lawsuits from the patent holder for lost royalties, treble damages, injunctive relief, and attorney fees.

Protection Under US Patent Law

Patent law does not permit using saved seed for planting purposes, including use for “cover crop.” Labeling seed as “Variety Not Stated” (VNS) does not allow an exemption to patent law. The Maryland Seed Law does not allow seed to be labeled as “VNS.” The variety must be stated on the seed tag, including those sold as “brands.” If the variety has patent protection, the seed tag will have a statement such as “U.S. Patent Protected” or “U.S. Patent Pending” to clearly identify that the seed of that variety cannot be reproduced.

Third Parties (Seed Conditioners) Should Be Aware Of Patent Protected Varieties

Past court decisions have found that those assisting farmers in violating patent law have been subject to similar penalties. Seed conditioners and other third parties that work with farmers to condition their saved seed must determine if a patent protects such saved seed. One court decision required a seed conditioner to remind customers that it is illegal to save and replant patented seed, and to have customers certify in writing that the saved seed is not patent protected (Monsanto Co. v. Parr, 545 F. Supp. 2d 836 (N.D. Ind. 2008)).

Farmers should keep in mind that records from seed conditioners, other third parties, and even testing records from state seed testing labs could be used to help a patent holder show infringement. These records would be available in such cases for patent holders to request and use in building a case for patent infringement.

Conclusion

As with soybeans, the age-old adage of “farmer saved seed” is no longer applicable to wheat. Patent infringement is a serious offense and can be very costly to both the grower and the seed conditioner.