Extension Column

Throughout the ages, farmers have planted seed saved from their previous wheat crop. When making seed wheat decisions, they selected the best quality seed from the highest yielding varieties. Choosing wheat varieties based on yield and quality continues, but now seed decisions include a new consideration.

With the advent of hybrid crops like corn, farmers discovered that they did not get the advantage of hybrid vigor when they saved their seed, the ensuing crop was not uniform and yields were poor. It was quickly learned they needed to buy new seed each year of these hybrid crops to maximize yields. This annual purchase of hybrid seed commercialized the corn seed business and resulted in enormous investment into research and development for improved corn hybrids. Consequently, technology in corn has benefitted farmers with increased yield potentials. But what about a non-hybrid crop like wheat?

With the passage of the United States Plant Variety Protection Act in 1970, congress encouraged private investment into development of new plant varieties, including wheat. That investment is now paying off in the form of new and improved wheat genetics. However, an important component of this act was the farmer’s right to save seed from some varieties. Section 113 of the act states, “It shall not infringe any right hereunder for a person to save seed produced by the person from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on the farm …”

Simply stated, if a farmer purchases ordinary Certified wheat seed that is Plant Variety Protected, they may keep seed grown from that variety for planting on their farm. However, keep in mind that there are exceptions to this law which is Certified Seed Only varieties. When planting Certified Seed Only varieties, new wheat seed must be purchased yearly.

In addition, if a farmer buys non-certified wheat seed of a PVPA protected variety from someone else, it is likely that not only is the purchase of that seed in violation of the Act, but saving seed of subsequent production is also a violation. Wheat varieties that are Plant Variety Protected must be purchased from permitted seed dealers only.

The most recent restrictions to saving seed are those imposed by patented traits and sales contracts. In most cases, farmers are prohibited by patent laws from saving seed of varieties with patented traits like Roundup® resistance in soybean and Clearfield ® in wheat. This is usually reinforced through a contract that is signed at the point of purchase. Even if traits are not patented, saving seed may be prohibited as part of the sales contract. Certified Seed Only Varieties must be purchased every season. Current Certified Seed only varieties are: AP503 CL2, AP18AX, Brawl Cl plus, Byrd Cl plus, Crescent AX, Guardian, Fortify SF, Incline AX, Kivari AX, LCS Fusion AX, Monarch, Oakley Cl, Snowmass, Snowmass 2.0, Sunshine, SY Legend CL2, SY Sunrise, Thunder Cl, WB4269, WB4418, WB4595, WB4699, WB4721, WB4792. Other varieties may be added to this list as they become released. Varieties not on the Certified Seed Only list can be replanted every season without purchasing new seed.

The consequences of planting illegal seed can be substantial. The owner of the variety could go as far as filing a lawsuit asking for the destruction of the crop. There could also be monetary awards and attorney fees. If state or federal officials get involved, fines could be levied per occurrence.

Ignorance of the law is no excuse. As a best management practice, farmers should know what variety they are planting and follow the protocol for that variety. If they did purchase Certified seed, they should read the label and sales contracts to see if there are any restrictions on saving seed. The label and sales contract will state planting limitations.

As a result of these new rules, new revenues are being generated which benefits wheat growers directly. Fees collected from planting patented varieties are reinvested directly toward wheat research, mostly in the form of developing new wheat varieties. The new varieties have traits that improve yield and quality, making the fees a positive investment for wheat producers.