Patent and Other Limitations on Using Saved Seeds Still Apply to Cover Crops
Updated: Jul 1, 2020
This post is not legal advice. See here for the site’s reposting policy. This article first appeared in the Lancaster Farming and Delmarva Farmer this month.
Next month, the Maryland Department of Agriculture (MDA) will open enrollment in the cover crop program. Based on MDA’s recently released numbers, many of you will decide to enroll in the program. As you make planting decisions for the cover crop program, it is important to remember that trading saved seeds, selling saved seeds to a neighbor, or purchasing seed from a grain dealer out of the bin is potentially illegal under federal and state laws.
The majority of wheat varieties used by producers for the cover crop program are protected under U.S. patent law or under the Plant Variety Protection Act (PVPA). A patent from the federal government grants an inventor the right to exclusively make, sell, and use the invention for 20 years. Under patent law, saving patent-protected seeds for replanting is not allowed, even for cover crop seeds. Seed companies selling patent-protected seeds often actively enforce their patent rights against producers who use saved seeds. When a producer violates a patent by saving seeds, federal law allows damages equal to a reasonable royalty for the use of the patent.
Unlike patent law, the PVPA does allow a producer to save seeds for replanting purpose. Under the PVPA, a producer can use only the amount of saved seed necessary to replant an area no bigger than that planted the year the seed was originally sown. For example, if you harvested and saved 50 acres of wheat seed in 2016, then in 2017, you can only use enough wheat seed to replant 50 acres or less.
The PVPA does not allow a producer to sell saved seed to another party for replanting. With the PVPA, a farmer cannot sell saved seed knowing the end use will be for planting a crop. Courts have broadly interpreted what selling is, and have included trading seeds, gifting seeds, buying a standing crop to save for seed to replant, brown bag sales, bin-run sales, and selling seed for “feed” when the producer knows seed will be used for replanting. Courts have not looked kindly on creative ways around selling saved seed in the PVPA.
How is a producer to know if a seed falls under patent law or PVPA? State laws often require seeds sold in the state to include an appropriate label. In Maryland, the law requires that all seeds sold, offered for sale, or transported in Maryland for planting purposes must contain a label or tag printed in English. The label must include a common name or scientific name of each component over 5 percent, the origin of the seed, lot number or other identifiers, percentage of seeds under 5 percent, percent by weight of inert matter, percent of weed seed, and each kind of restricted noxious weed seed. Other states have similar labeling requirements on seed labeling. Checking the label before purchase will allow a producer to understand if the seed falls under either the PVPA or patent law, or is an unprotected variety.
Because the seeds sold in many states require a label, cover crop seeds sold must include a label. Older practices for selling seeds, such as selling cover crop seeds as “variety not stated,” would violate the PVPA and patent law. Other practices such as selling cover crop seeds out of the bin would also violate the PVPA and patent law.
Since the use of cover crops is growing not only in Maryland but around the country, producers should keep in mind how the PVPA and patent law affects their ability to utilize saved seeds for replanting. Violating the PVPA or patent law could open a producer up to paying the seed developer for the violations. Many states, like Maryland, are working to find cover crop varieties whose seeds producers can save and use. Before buying any cover crop seeds, make sure you check the label to determine your limits.