The 1970 Plant Variety Protection Act, which prohibits selling uncertified seed for planting, came about because the U.S. Patent Office ruled in the 1960s that you could not obtain a patent on a living plant.

For four decades, it was the primary law that protected the intellectual property of seed companies and offered financial return that encouraged continued research, says Daryl Strouts, executive director of the Kansas Wheat Alliance, the marketing arm for varieties released by Kansas State University wheat breeders.

Within the last decade, a new twist has been added to the legal structure protecting new varieties. The patent office, which declared a whole, living plant could not be patented, offered a different approach to a single gene or trait, ruling that those could be patented.

Genes can be patented
So now, a farmer getting ready to buy seed has to worry about patented genes as well as the PVPA.

For corn and soybeans, the best-known patented gene is probably Roundup Ready.

In wheat, the Clearfield gene is under patent, so farmers who sell that seed could be in double violation of both the PVPA and the patent on the gene.

"Many farmers, especially older ones, are still under the impression that the PVPA does not apply to varieties developed at public universities," Strouts says. "Back in the 1950s and 1960s, that was true. But today, all public varieties go through some kind of licensing program. Most are pretty open programs, and you can sign up for a small fee. But all of them use PVP and seed certification."

He says farmers who buy certified seed in one year can legally save seed back from harvest and plant it the following fall. But they cannot legally sell it to anyone else.

Law can be tricky
One lesser-known facet of the PVPA is that it is illegal for family farming operations to trade seed among farm units.

"If you farm with your dad and brother, for example, you can't trade seed among yourselves unless all of the farming operation is one farm unit under the Farm Service Agency rules," Strouts says. "There are probably people who are not aware of that."

More and more seed companies are requiring contracts when they introduce varieties with patented genes, because contract law can be easier to enforce that either patent law or the PVPA, Stouts says.

Taking wheat for warehouse receipt
Another source of confusion pertains to wheat that was delivered to an elevator, he says.

"A farmer may deliver his crop to the elevator in June and take a warehouse receipt. Then he shows up in September and wants to take wheat as grain rather than cash for his crop," Stouts says. "Legally, the elevator has to give him the wheat. But another law says if you know he's going to plant it, you can't give it to him."

As a rule, the farmer taking possession of the wheat says he is going to feed it to livestock, which is legal.

If he takes it home and plants it instead, knowing that it is illegal seed, the owner of the variety can require him to destroy the crop.

"There is a severe risk when you plant illegal seed," Strouts says.

The PVPA also requires that any seller of wheat for seed has to sell it by variety name, and that is virtually impossible for an elevator that takes in wheat from several farms during the harvest season and has it mixed together in the bin.

Local co-ops and other elevators do have legal seed for sale in a lot of locations, Strouts says. But it most likely will be bagged seed or clean, treated seed in a designated bin and will carry the blue tag that verifies it is certified seed.

"Your safest route to knowing you are buying legal seed is to buy certified seed from a reputable dealer," Strouts says.