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Educate, then prosecute

Agriculture.com Staff Updated: 12/15/2010 @ 3:47pm

By Cindy Snyder

Wheat growers who are thinking about selling some wheat for seed had better think again.

That’s the message a coalition of seed companies and land-grant universities hope growers hear. The Farmers Yield Initiative (FYI) was formed to educate farmers about the legal seed trade. But it may be the lawsuits filed by universities against farmers accused of brown bagging (selling seed protected by the Plant Variety Protection Act) that are catching growers’ attention.

“You can try to be nice and educate first, but at some point you have to enforce it,” says Mark Henry, a Fayetteville, Arkansas, attorney who represents FYI members.

The FYI sent 98,000 direct mailers to farmers in 2009 and received about 215 leads on the initiative’s hotline. This resulted in approximately 85 investigations and $500,000 recovered in unpaid royalties.

Five of those investigations resulted in the South Dakota Board of Regents filing variety infringement cases in federal court last summer. Four of the five cases have been settled for between $10,000 and $32,500. The farmers have also signed an admission of variety infringement. Another case in Kansas settled for $150,000. Henry has settled cases for as much as $3 million.

“I’m helping universities finally get some royalties they’ve been denied,” Henry says. “We’re not trying to change any laws. The laws have been on the books since 1974.”

While protecting varieties has been a priority for universities and seed companies for decades, those entities relied on state agriculture departments to enforce the federal law. Ineffective enforcement, coupled with rising variety development costs and shrinking research dollars led the entities to look for a better way to recover lost royalties. Royalties from certified seed sales support variety research.

But protecting the integrity of varieties and maintaining seed quality are even more important than collecting royalties. Infringers not only benefit from using the name of a protected variety without permission, but also their seed production standards may not be as stringent as state-certified seed programs.

“Poor quality control on their part can diminish the value of our variety,” says Kevin Kephart, vice president for research at South Dakota State University.

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