Oats are the second most popular cover crop in Iowa, creating a significant market for oat seed. Though cover crop seed markets offer the advantages of a favorable price and local markets with little transport cost, growing oats for seed is more difficult than the other most popular cover crop: rye. This is due to the federal Plant Variety Protection Act, a federal law that protects all seed sales in the U.S.
The PVP Act governs the production and sale of seed for the purpose of ensuring the breeders are fairly compensated for their work. Under this law, the owner can decide to register the seed under a “certification required” or “certification not required” option. This then determines the steps needed to sell the seed legally. The most significant difference between oat and rye varieties is the amount of varieties protected under the PVP act. Eighty-nine varieties of oats are registered for PVP protection, while rye has only a few varieties protected by PVP (ND Dylan, Maton II, KWS Propower).
“Our business, Iowa Cover Crop, contracts oat acres in Iowa for cover crop seed production, so understanding these rules is important for us,” says Bill Frederick, a seed producer near Jefferson in central Iowa. He recommends that farmers interested in growing oats for seed read up on the PVP rules and the varieties protected by the act.
Plant breeders develop new varieties of oats that have helpful or desirable features like high yield, high test weight or resistance to disease pressures. Once they hone these features, they then begin the process of publicly releasing a new variety so farmers can take advantage of these traits to increase the profitability of their oat crop. To fund the years of research and development that go into developing a new variety — and to ensure that no one is profiting unfairly from someone else’s genetics — most breeders pursue some kind of intellectual property protections that ensure some funds from sales of that variety go toward continuing to breed lines that meet future production challenges.
Breeders can provide this intellectual property protection for their varieties by filing for PVP protected status with USDA. The breeder has to prove that the genetics in the variety are unique from other varieties with intellectual property protection, and they also determine how the variety can be propagated and sold.
If the breeder sees it as important that the variety is genetically pure and consistent, the breeder may require seed certification, which involves a field inspection, testing for genetic purity and starting with foundation seed (closest to parent genetics). If the breeder has a goal of making seed more readily available, he or she may choose to file for PVP without a certification requirement. It can take a while for the federal government to process and issue a PVP certificate once the application is filed. But from the time that the PVP application is filed, the restrictions that the breeder suggested are considered “in effect” unless the application is rejected or withdrawn.
Website provides answers
The USDA’s Agriculture Marketing Service maintains a public web database of all of the PVP certificates for plant varieties that currently or have ever had PVP protection status. Whether or not certification is required is recorded on an ST- 470 form, which is attached to the database as an individual PDF for each variety.
To help, Practical Farmers of Iowa created a spreadsheet that includes over 150 oat varieties, and the certification and protections they currently have as of 2019. You can download the full version of the spreadsheet from Practical Farmers of Iowa.
This spreadsheet shows you whether a given variety has “certification required” under the Title V option of the PVP act. To sell any variety under this option, the seller must first apply for certification with a state certifying agency to gain authorization to sell the seed. In most states (Iowa included), this agency is the Crop Improvement Association. Additionally, the producer has to plant foundation seed, undergo a field inspection, and condition and test the seed at a licensed facility.
If the variety falls under “certification not required,” this means it is not protected by Title V (Non-Title V). Under this option, the prospective seed producer must obtain authorization in order to legally sell seed from the variety, but the other steps of certification through the crop improvement association are not required.
For non-Title V PVP classification, the prospective seed producers must arrange the details of the authorization process with the owner of the variety (also listed in the worksheet). In some cases, the owner may require you to sign a license or other contract that could include royalty payments or fees or production stipulations for the use of the variety.
Alternatively, owners may not require a license at all. It is a good idea to get your communication with the owner in writing, especially if there is no license or contract, so that you have some documentation that you contacted them and obtained permission to grow the variety for seed.
A few exceptions to PVP
There are a small handful of cases where varieties have been granted PVP protection but can still be produced without authorization from the owner or certification from the crop improvement association. For example, if PVP is in effect for both Title V and non-Title V PVP classification, farmers may save seed to replant on their farm the following year but cannot sell this seed for planting purposes unless authorized.
Another example is similar to copyright or patents: PVP does not protect intellectual property forever and eventually the varieties enter something like the public domain. PVP protection is only effective for 20 years starting from the application date. Once the PVP expires, there are no certification or owner authorization requirements to produce seed from that variety. For this reason, old oat varieties like Jerry and Ogle with expired PVP have been the most popular varieties used for cover crop seed production; however, their poor resistance to disease and low productivity make these varieties risky and troublesome to produce.
The regulatory authority for PVP protections is the Plant Variety Protection office, a division of USDA’s Agricultural Marketing Service.
For more information about patents on oat varieties, and the regulation of seed sales as it relates to small grains and cover crop seeds, see Practical Farmers of Iowa’s blog on the topic.
Bower is strategic initiatives manager for PFI and Becker is a sustainable agriculture assistant.