You can’t legally buy brown-bagged seed and plant it for grain. But what about using it as a cover crop? What about using it in a mixture? If the crop isn’t going to be harvested for grain, maybe Plant Variety Protection rules don’t apply, right?
PVP laws still apply. You can’t buy or sell protected seed without getting it certified and paying the patent holder its royalty even if you use it as a cover crop.
However, you can save bin-run grain that you’ve grown yourself on your farm and plant the seed, even if it is a protected variety. Don’t give some to your neighbor, though, even if no money changes hands. That’s illegal, too.
The "saved seed” provision of PVP does not apply to patented varieties, however. Patented varieties are more common in corn, soybeans and some wheat seed.
There are some older varieties released by North Dakota State University, South Dakota State University and other institutions with public breeding programs that are not protected by PVP, says Joel Ransom, NDSU Extension agronomist. They can be sold without restriction.
To find out if a variety is protected or not, contact your state seed department or crop improvement association.
Ignoring PVP laws can be costly. A northwest Iowa farmer who operated his own elevator had to pay South Dakota State University $2.95 million last year to settle a lawsuit the university brought because he was brown bagging PVP oat varieties in cover crop mixtures.
How did SDSU know he was using its protected varieties?
"When the original samples from the case were taken, the true variety identity was not yet known," says Neal Foster, executive director of the South Dakota Crop Improvement Association (SDCIA). "Varietal identification has made great advances in recent years. Today, with the use of electrophoresis or high-performance liquid chromatography, variety determination can be known in a matter of hours. Both of these methods use the proteins that are specific for each variety to determine the identity. The identity of the varieties in question in the lawsuit were determined to be SDSU-released varieties, giving information for the case to proceed."
SDSU has gotten more aggressive in going after brown baggers. It is trying to protect both seed integrity and funding for its breeding programs. The money pays for equipment, land leases, labor and other items.
PVP protected varieties can be used in cover crop mixtures but must be a class of certified seed, and the seller must have permission from the variety owner, Foster says.
While this rule would seem to add cost to the cover crop mixture, it could actually save you money in the long run.
Certified seed is field inspected and tested. It is required to meet seed quality standards before it can display and be sold with a blue certified seed tag.
Your chances of getting unwanted weeds or other crops from the mixture are greatly reduced if you use certified seed, thus saving your operation from unwanted pests in the future.
A central South Dakota grower who bought cheap millet seed from out of state to plant on 4,000 prevent plant acres ended up with a severe weed problem, Foster says. The cheap mixture contained Palmer amaranth seed. Now, he will spend years trying to get rid of the weed.
Days long gone
Seed and variety protection laws can sound confusing, says Ken Bertsch, North Dakota state seed commissioner.
But one thing is simple and clear, according to Bertsch: "The days of going to the local elevator and buying common oats or barley to spread as a cover crop are gone."
Have more questions about seed and variety protection laws? Contact Bertsch at firstname.lastname@example.org.