{"id":2391,"date":"2023-10-16T15:55:36","date_gmt":"2023-10-16T15:55:36","guid":{"rendered":"https:\/\/agrilife.org\/texasrowcrops\/?p=2391"},"modified":"2023-10-16T15:55:36","modified_gmt":"2023-10-16T15:55:36","slug":"certified-seed-only-cso-and-plant-variety-protection-act-wheat-varieties","status":"publish","type":"post","link":"https:\/\/agrilife.org\/texasrowcrops\/2023\/10\/16\/certified-seed-only-cso-and-plant-variety-protection-act-wheat-varieties\/","title":{"rendered":"Certified Seed Only (CSO) and Plant Variety Protection Act:\u00a0 Wheat Varieties"},"content":{"rendered":"

What farmers can and cannot do regarding saving grain for planting seed<\/em><\/p>\n

 <\/p>\n

Calvin Trostle, Ph.D., Professor & Extension Agronomist, TAMU Dept. of Soil & Crop Sciences, Lubbock, (806) 746-6101, ctrostle@ag.tamu.edu<\/a><\/p>\n

David Drake, Ph.D., Integrated Pest Management Extension Agent, Hunt Co., Commerce, (903) 468-3295, david.drake@ag.tamu.edu<\/a><\/p>\n

August 15, 2023<\/p>\n

 <\/p>\n

In the past few years, many if not most wheat seed companies have implemented additional protections on many if not most of their wheat varieties.\u00a0 This includes limiting planting to Certified Seed Only (CSO).\u00a0 This means a CSO variety can only be planted in certified seed form, which must be purchased from the developer or their licensees and designated seed dealers.\u00a0 This is an effort to better recapture the cost of developing and releasing a new wheat variety with the most recent breeding improvements.\u00a0 The development cost can be several million dollars per released variety.\u00a0 Wheat breeding programs potentially make tens of thousands of observations and thousands of crosses through many generations over multiple locations to find one cultivar that will be released (Fig. 1).\u00a0 This is an expensive, time-consuming process.<\/p>\n

\"\"<\/a><\/p>\n

 <\/p>\n

 <\/p>\n

Fig. 1<\/strong>. An advanced replicated Texas A&M AgriLife Research wheat breeding nursery at Bushland, TX, June 2023.\u00a0 This field is an intermediate step between initial single plant breeding crosses\/single row plots vs. broad regional testing at many sites leading to final selection of a cultivar for release as a new variety.\u00a0 (Photo courtesy Shannon Baker.)<\/p>\n

 <\/p>\n

 <\/p>\n

As a condition of the farmer\u2019s purchase of a CSO variety farmers must sign a Stewardship Agreement with the variety developer. The key agreement condition is the farmer may NOT save any grain as seed for planting a future crop. \u00a0This is a contractual matter, not a regulatory or legal matter (unless the variety also has a utility patent, see below). \u00a0The developer of a CSO variety who finds a farmer in violation of a CSO agreement has the right to seek civil recourse through the court system. \u00a0If a farmer is unwilling to agree to CSO terms, then they simply should not purchase a CSO variety. Fortunately, there are other good non-CSO variety choices.<\/p>\n

Some university breeding programs including Colorado State (via their PlainsGold brand) also have adopted CSO on some varieties. Currently no AgriLife TAM varieties are CSO but there is no assurance this provision may remain in the future.<\/p>\n

 <\/p>\n

The Historical Plant Variety Protection Act (PVPA)<\/strong><\/p>\n

 <\/p>\n

Texas farmers are likely somewhat familiar with seed law in the form of PVPA. \u00a0In wheat, PVPA allows a farmer to save grain from a variety they have purchased.\u00a0 They may condition\/treat the amount of seed he\/she can reasonably expect to plant the next cropping season from their saved grain.\u00a0 It is illegal to sell this saved grain to anyone else as planting seed without permission of the developer.\u00a0 Relabeling a PVPA variety as \u2018VNS, variety not stated\u2019 and selling it to another party is also prohibited.\u00a0 For a 2005 AgriLife Extension review of PVPA see https:\/\/varietytesting.tamu.edu\/wp-content\/uploads\/sites\/17\/legacy-files\/wheat\/docs\/plantvarietyprotectionact.pdf<\/a><\/p>\n

Texas A&M AgriLife will be updating the above previous guide on wheat and PVPA for the 2023 wheat planting season.<\/p>\n

 <\/p>\n

Utility patent<\/u><\/p>\n

Texas A&M AgriLife agricultural law Extension specialist Tiffany Dowell-Lashmet has blogged about PVPA vs. another form of seed protection, the utility patent.\u00a0 You can read the blog at https:\/\/agrilife.org\/texasaglaw\/files\/2022\/01\/Overview-of-Seed-Saving-Laws.pdf<\/a> (Nov 2021).\u00a0 A utility patent, though more expensive than PVPA, is a stronger protection of 20 years on the developer\u2019s intellectual property.\u00a0 Dr. Bryan Gensch, executive director, Texas Seed Trade Association, notes that utility patents are more comprehensive and expensive to implement than standard PVPA.\u00a0 The main advantage is the U.S. court system more widely and readily recognizes\u2014\u201cunderstands\u201d\u2014the long history of patent protection in contrast to the few recent decades of PVPA.<\/p>\n

Most wheat variety developers may also use utility patents as a means to govern the use and reuse of their varieties. \u00a0A utility patent is not a requirement to designate a variety as CSO, which could simply be the developer\u2019s conditions for purchase and enforcement of a contractual agreement for no saved seed.\u00a0 A utility patent, however, would provide a stronger legal basis for requiring and enforcing a CSO grower agreement.\u00a0 Utility patents, PVPA, and<\/p>\n

 <\/p>\n

 <\/p>\n

contractual developer\/grower agreements rely on the seed developer (intellectual property owner) to enforce infringements through civil courts.<\/p>\n

One recent example of an apparent violation of CSO<\/u> in Texas was revealed in an AgriLife grower variety survey estimated that there were >20,000 acres of a specific wheat variety planted.\u00a0 Yet a company representative share they sold only 8,000 to 9,000 units (about one unit per acre for seeding).\u00a0 This suggests that farmers were saving seed in violation of their Stewardship Agreement.\u00a0 If caught, a farmer can face major civil penalties well beyond the actual value of the seed.<\/p>\n

 <\/p>\n

Planting Choice of CSO Seed vs. Saving PVPA Seed<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

Varieties with CSO designation may cost a little more to plant than other purchased varieties (certified or not). \u00a0But they likely represent the best genetics a company or university seed program has to offer and may have utility patent traits such as CoAXiom\u00ae herbicide tolerance. \u00a0It is possible farmers will likely not choose CSO varieties for drought-prone dryland regions.\u00a0 Saving seed under PVPA for on-farm use is one way to reduce economic risk for drier, low-yielding environments.<\/p>\n

Texas A&M AgriLife does not endorse or discourage saving of seed under PVPA for your own use.\u00a0 We do encourage farmers to ensure good quality seed if saving grain for planting. This includes high germination (>95%) and a test weight or >58 lbs.\/bu (60 lbs.\/bu is standard).\u00a0 As a general rule of thumb, we suggest farmers using legal seed saving, consider switching out to certified seed after saving seed twice (purchase certified seed every third year).\u00a0 In general Texas A&M AgriLife agrees with the adage \u201cCertified seed doesn\u2019t cost, it pays.\u201d\u00a0 Certified seed more likely ensures genetic purity, strong germination and seedling vigor, and minimal risk of seed-borne disease, or contaminant weed seed.<\/p>\n

As of this writing companies we are aware of \u00a0marketing some or most of their seed under CSO conditions include:<\/p>\n

 <\/p>\n