Regulatory Information

The majority of crop cultivars available to consumers today are protected by some form of Intellectual Property Rights laws (IPR).  There are several types of IPR laws available to developers/owners of varieties and consumers should understand the laws to ensure they are in compliance with the owner’s legal rights. 

Regardless of the method by which crop varieties are protected, they have the same purpose; to protect the Intellectual Property Rights of the variety owner. The end result is that the variety owners recover some of their costs in the development of a variety, which are substantial, and reinvest revenues into research and development of new varieties for the benefit of the public.

Plant Variety Protection

The most commonly used form of IP protection used by variety owners is Plant Variety Protection (PVP) issued by the USDA-AMS Plant Variety Protection Office. This federal law was enacted in 1970 as a mechanism to stimulate research in self-pollinated crops like wheat and barley. PVP gives variety owners the exclusive right to determine who has authority to produce and sell seed of their varieties. As originally enacted, certificates of protection were effective for 18 years and provided an exemption giving farmers who legally acquired seed the right to save enough seed to plant on their farm and sell what was left over. But that has changed.

In 1994, the Plant Variety Protection Act was amended, extending protection to 20 years and to eliminating the farmer’s exemption, thus prohibiting farmer-to-farmer sale of saved-seed. Unless otherwise prohibited by contracts or patents, farmers may still legally save seed for replanting on their own farm, but they may not sell, barter or exchange it for reproductive purposes.

Since 1995, all varieties that are issued PVP certificates are protected by the 1994 amendments. Protected varieties are identified on our website and in publications like the Seed Directory with the notification: Unauthorized Propagation Prohibited, PVPA 1994 – U.S. Protected Variety

Title V

Variety owners also may select the Title V option when they apply for protection under PVP. Title V of the Federal Seed Act prohibits the sale of non-certified seed when the variety owner opts for the certified seed option on their PVP application. Very simply stated, if a variety is protected by PVP Title V, the seed must be certified by an official seed certifying agency to be eligible for sale. The Seed Department encourages variety owners to utilize this type of IPR protection because it is the easiest form of protection for us to track and legally enforce.

Utility Patents

Some variety owners choose utility patents to protect varieties. These patents are typically used for specific, novel traits, such as a biotech trait, but may also be applied to processes used in the development of a variety. Patents are often combined with PVP. Patent numbers are generally listed on the label provided by the genetic supplier, but this isn’t always the case and it is more difficult to track down patents by variety name. Try the US Patent Trademark Office website to search specific crops or varieties. 

Contracts and Licenses

Contracts and licenses are used by some genetics suppliers to manage IP rights and have more control over their authorized seed producers and users. These legal agreements specify the rights and obligations under which the purchaser may use the variety. Ordinarily, these specify that the seed is to be planted for a single use, i.e., to produce a commercial crop, and prohibit the farmer from saving grain for replanting or sale. Consumers need to be aware of the terminology used by variety owners. Some companies, and even a few universities, offer products as Certifed Seed Only or CSO. With some companies, a formal agreement between buyer and seller is not required, and merely purchasing and accepting delivery means you accept the terms of sale. It is important to understand the requirements when purchasing seed of these varieties.  

Saving, Selling or Conditioning Protected Varieties

The type of IP protection will determine what growers and conditioners can legally do with grain harvested from legally obtained seed. The table below is generally true for varieties protected by the methods listed. If unsure, check with the variety owner.  

1. Certified Seed Only/Limited Use License Agreement
2. If the seed was acquired legally through authorization from the owner
3. If the seed was purchased as a class of certified seed
4. Limited to the amount of seed needed to plant the farmer's own holdings
5. Check terms of contract or purchase agreement

Conditioners may be held liable for cleaning grain of PVP varieties that ultimately is sold as seed. Conditioning should be limited to the amount of seed needed to plant a farmer’s own holdings. If a conditioner cleans grain that was not legally purchased with authorization from the owner, the conditioner can be held liable for damages by the owner of the variety. Conditioner’s should get a written document, such as the Seed Conditioner’s Waiver from the grower stating that the grain will not be sold to others for planting purposes and will be only used on their own holdings.
 

Penalties for Violations

Violations of State Seed Laws (4.1-53) or administrative rules implementing State Seed Laws can result in civil penalty up to $10,000 for each violation. In addition, variety owners may also seek compensation for up to three times the damages, plus court costs and attorney fees on any seed sold and from the crop produced from the illegal seed planted. Conditioners will also be held liable for conditioning grain of a PVP variety that was subsequently sold as seed to other producers.

Any person or company labeling and selling agricultural, vegetable, flower, or tree and shrub seed in North Dakota is required to obtain a Seed Sales Permit and annually report all seed sales based on volume sold. 

Agricultural seed means the seed of grass, forage, cereal, fiber, oil crops, Irish potato seed tubers, and any other kind of seeds commonly recognized within this state as agricultural seed, lawn seed, and mixture of these seeds.

Vegetable seed means the seed of a crop that is grown in a garden or on a truck farm, and which is generally known and sold under the name of vegetable seed within this state.

Permit Requirements

North Dakota Residents / Non-Residents

• Seed Sales Permit

Reporting Requirements

Any person labeling agricultural, vegetable, or flower seed in North Dakota is required to submit an annual report and pay a fee on the volume of seed sold. Only seed sold with your name as labeler must be reported. The reporting period is July 1 through June 30 of each year. Report forms are mailed to permit holders the end of June and the completed report and payment of fee are due September 1.

Additional Resources

Quick Reference Guide for Seed Labelers

Application for Seed Sales Permit

Seed Labeling Fees

Retailers who intend to sell seed into Canada must first check the Plant Variety Protection (PVP) status of the variety. Varieties protected under the PVP Act in the United States cannot be sold into Canada without permission from the owner of the variety. Additionally, some varieties are licensed to seed companies in Canada and only those licensees can access seed of these varieties from the United States.

Seed tests and documents required to export seed to Canada:

• Purity analysis
• Germination
• Canadian noxious weed check
• Loose smut for barley
• Phytosanitary certificate issues by the ND Department of Agriculture is required for some crops

More information about phytosanitary certificates and export requirements can be found on the North Dakota Department of Agriculture website.

NDSU Varieties

The NDSU Research Foundation and the ND Crop Improvement and Seed Association as licensee, have specific requirements for sale of NDSU varieties into Canada. Contact them for more information.

Before acquiring seed from Canada, be sure to first determine whether the variety is eligible to be sold into the U.S. Many varieties produced in Canada may be exported only by a Canadian licensee of the owner. In turn, these companies may have a licensee in North Dakota who will be the sole distributor of these varieties.

The Canadian system does not require complete analysis labeling so in order for Canadian seed to be eligible for relabeling, certain steps must be followed to obtain proper labels for resale.

Purchasing Canadian Seed for Resale

Only approved conditioners or bulk retailers are eligible to purchase and resell certified seed. When seed is delivered to your facility, obtain representative samples from all shipments comprising a new lot of seed for relabeling. Thoroughly mix these samples together and submit a two-pound sample to the department for testing. The sample should be accompanied by the Canadian bulk pedigreed seed certificate from each load, the new lot number you assign and the number of bulk certificates you will need. The pedigreed seed certificate is a 4½ inch by 8½ inch form that includes the kind and variety, number of bushels, crop certificate and lot numbers, class, name of vendor and name and address of the purchaser.

If the only documentation you receive is the pedigreed seed certificate, then the following tests are required for new North Dakota Bulk Certificates: 

• Wheat - germ, purity, seed count
• Field Peas and Soybeans - germ, purity, seed count
• Barley - germ, purity, seed count, loose smut
• Chickpeas and Lentils - germ, purity, seed count, ascochyta
• Flax - germ and purity

If you receive a seed analysis report showing germination, purity and seed count with the pedigreed seed certificate, no additional testing is required for relabeling.

Purchasing Canadian Seed to Plant for Commercial or Seed Production

A grower planning to purchase Foundation or Registered seed to produce certified seed will need the pedigreed seed certificate or valid seed tags as proof of eligibility when the application for field inspection is submitted. The grower’s name must be on the certificate as the buyer in order to apply for field inspection.