February 20, 2004'Catch' seed: What you
don't know can hurt you
Possession isn't necessarily nine-tenths of the law, especially if the purchase is a wheat variety protected by the Plant Variety Protection Act. This misunderstood and often-ignored law may soon become more stringently enforced, largely due to the stepped-up use of DNA plant testing.
Gary Bomar, Texas Cooperative Extension agricultural agent for Taylor County, said the practice of "catching" or keeping some of the current crop's production for planting the following season has long been practiced in the farming business.
"That's not a problem in itself," he said. "The law says farmers may save a limited amount of a protected variety seed for replanting, but they can't sell planting seed to anyone without permission from the owner. Of course, if the seed is not a protected variety, there are no restrictions.
"Variety infringement cases are popping up all over the United States, and there will be one here one day. We've got too much wheat grown here for there not to be. It's already happened in Wichita Falls. We in Extension are always talking about an educational opportunity. But the real education in this case will be when a producer out here gets fined about $35,000. That's going to educate them pretty quick."
J.W. "Dub" Vinson owns Abilene Ag Service and Supply. He also holds the rights to WinMaster, a PVPA wheat variety that's popular among Central West Texas producers.
Vinson explained the scenario: "Say a farmer plants some of this WinMaster seed, a protected variety, and that wheat did pretty well for him. So he says, `Well, I'll just catch some of that seed and sell it to my neighbor.' Abilene Ag is entitled to a royalty from that sale. If I don't get paid that royalty or give permission for that specific sale, then it's against the law. In fact it's a federal offense.
"That's the real kicker in it. It's not a misdemeanor, it's a federal offense and they can carry you to the federal courthouse. And the royalty owner wins them all."
Vinson said they win them all because DNA testing is so accurate now that a person can plant a protected variety, sell the resulting seed and wheat heads pulled from the subsequent crop can be traced to the original parent crop.
Bomar summed up the problem by saying: "Even if you come to my farm and buy a PVPA wheat straight from the combine and plant it without paying the royalty, then we're both guilty even if you, the buyer, didn't know the wheat was a protected variety. Granted, I should have told you, but even if I didn't we're both still technically liable.
"This is a serious matter that's going to result in some mighty unhappy folks sooner or later if things don't change."