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Educate, then prosecute

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.

Henry thinks the approach of
educating farmers about the benefits of certified seed first and enforcing the
Plant Variety Protection Act (PVPA) second is a reasonable approach. “The
people we’ve caught we have on record as knowingly infringing on a variety,” he

Growers who buy certified
wheat seed are allowed to plant back a comparable amount of seed without
violating the PVPA. What they can’t do is sell that seed to another farmer to
use for reproduction.

Protected varieties are
considered intellectual property. Federal law requires institutions that
receive federal funding to protect the resulting intellectual property. When a
member of the FYI is presented with reasonable evidence that a farmer is
infringing on a variety, the institution has no choice but to move forward and
settle the case either in or out of court.

“If we choose not to pursue
protecting the varieties, then we’re eroding our ability to protect future
varieties,” Kephart says. “And then, we might as well not protect any

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