Winter has settled in the northern hemisphere and many of us have put our farms to bed for the season. Some may be headed off to a restful vacation, a few weeks off as the seeds are drying in the greenhouse. But sooner or later, as the daylight hours grow shorter and we spend more time at the table in the evenings, we find our hands instinctively reaching for the seed catalogues, already dreaming about next year’s harvest.
There are many questions that go into selecting and purchasing seed. Is the variety adapted to these growing conditions? Will the yield meet harvest goals? How many seeds per bed feet, really, do we need? A growing consideration, these days, might also be whether you can legally save your seeds come next harvest, either to replant on your farm, to design your breeding project, to share with friends, or to sell in the seed market.
As the diversity of our seed system continues to funnel under the control of fewer and fewer seed companies—a consolidation of power that’s fueled in part by patents on genetic material—it is important not only to be aware of the intellectual property on our seeds, but also to support smaller companies as they seek fair and reasonable ways to support livelihoods for the growers that keep our farms going.
While the phrase “intellectual property” probably conjures thoughts about patents and trademarks, there is actually a rather diverse array of strategies plant breeders and seed companies use to stipulate how their seeds can be used. The acronym “IP” (or “IPR” for intellectual property rights) might refer to any of those strategies. Plant patents, for example, only govern asexually reproduced plants—that is, plants with genetically identical offspring that are multiplied through things like cuttings, corms, slips, and bulbs—while plant variety protection (PVP) certificates allow breeders to also claim ownership novel plant varieties that reproduce through seeds. A utility patent allows a breeder to claim ownership of any novel genetic trait, while a trademark only confers protection on the name of a seed. For a more detailed explanation of the types of IP strategies that might apply to your seeds, check out OSA’s IPR table.
Increasingly, seed catalogues are indicating if there are restrictions on the seeds they list. As you flip through your catalogue or peruse the website, keep an eye out for labels that indicate PVP, utility patent, trademarks, or an Open Source Seed Initiative (OSSI) pledge.
Don’t see any information on IPR in your seed catalogue? Ask your seed distributor! They want to hear from their customers about these issues. If they can’t tell you if there is IP associated with a particular variety, ask them to find out. Request that they share this information transparently in their seed catalogues.
In the meantime, there are a couple of other places you can look for information on IPR pertaining to seed.
The Open Source Seed Initiative allows plant breeders to pledge their seeds into a commons. An OSSI-pledged seed can be used in any way the grower chooses, so long as the grower does not restrict others from doing the same. The OSSI pledge must be included with the transfer of any OSSI seeds or their derivatives. You can find a full list of pledged varieties at this link.
Trademarks can be identified when either the TM or the R symbol follows the seed name. A TM means that the trademark has not yet been registered, but is still protected by common law, while the R means that the trademark has officially been registered with the US Patent and Trademark Office (USPTO). In both cases, it is important to know that a trademark does not confer any restrictions on the variety itself, but rather on the brand associated with the seed. This means you can save, replant, breed, and even sell seed saved from trademarked varieties—you just can’t market them under the same name.
Plant Variety Protection certificates (PVPs)
Plant Variety Protection certificates allow a breeder to claim marketing rights of a new variety for twenty years, after which the variety is entered into the public domain. While a seed grower cannot legally market seed with an active PVP, the certificate has two major exemptions: growers are allowed to save seed for personal, on-farm use, and are also able to use the protected variety in breeding and research programs. The USDA PVP Office maintains an online, public database of issued certificates in PDF format. It also maintains a spreadsheet that lists all PVP certificates ever awarded. The spreadsheet is updated monthly and can be downloaded at this link.
If you are buying large quantities of seed from a distributor, you may sign a licensing contract that stipulates the way the seed can and can’t be used. Some companies also print these licenses directly onto their seed packets or bags—these are called “bag tags,” and you agree to their terms by opening the bag. Look over your seed packaging for language that mentions restrictions, licenses, or pending patents.
If you suspect your seed (or a genetic trait you’re interested in breeding with) has a patent associated with it, you can look for it in the USPTO database. The European Espacenet database has the same information and is far more popular among patent examiners. Google Patents allows you to search by keywords as well as by inventor name.
It is important to keep in mind that even if you don’t see your seed on an initial search, it still might be under patent protection. For example, although ‘Aerostar’ lettuce was released by Vitalis Organic Seeds, a search for “Vitalis” returns no results; instead, the patent is attributed to Monia Skrsyniarz, the person who bred it.
Finally, if your seed does have a patent on it, it is possible that the breeder or seed company who owns the patent would allow for saving, sharing, or breeding of seeds. Sometimes, a company might pursue a patent as a way to strengthen its portfolio for shareholders, but doesn’t have intentions to aggressively protect the patent. Some companies might even preemptively apply for a patent as a defensive mechanism to prevent another company from restricting others from using a variety. (There is a lot to say about this as a symptom of a larger problem, but that’s for another blog post!) The take home point is: if you are unsure about what constitutes legal use of the seed you’ve purchased, reach out to the seed seller or, if possible, the plant breeder.
Open communication is a pillar of our seed community, and respectful conversations about the ways IPR impacts seed growers can only make our system stronger. For more information on OSA, IPR, and seeds, check out our Seed Patent Watch project.