Canadian farmers or seed retailers occasionally contact North Dakota seed retailers seeking seed varieties marketed in the U.S., but selling to Canadian entities could be illegal.
“While the temptation of gaining access to a new market may seem appealing to the retailer, one must understand the intellectual property rights of the owner before making that sale,” says Steve Sebesta, North Dakota State Seed Department deputy commissioner.
Most varieties of the major crops produced and marketed in the state are protected by the Plant Variety Protection (PVP) Act. This federal law gives variety owners the exclusive authority to determine who may produce and sell seed of their variety.
Most variety owners also opt for additional protection by selecting the certified seed requirement (Title V) when they apply for protection under PVP. Certification helps ensure varietal identity and product quality standards.
Under PVP Title V, selling seed that is not certified by an official seed-certifying agency is unlawful, if the variety owner has specified the certification requirement.
For public varieties protected by PVP Title V, authorization to produce and sell seed generally is conferred through the purchase of an eligible class of certified seed. These varieties are widely accessible to the public, and seed growers are legally authorized to produce and sell certified seed to the public.
For privately owned varieties, production and marketing of seed usually is restricted to the company’s licensed partners.
Sebesta adds, “Regardless of who owns the variety, public or private, it is an infringement of the variety owner’s intellectual property rights to sell a variety outside the U.S. without authorization.”
Some variety owners, including North Dakota State University, have licensing agreements with Canadian partners, so seed must be sold through those licensees.
The University of Minnesota does not have any Canadian licensees at this time, so sales of its varieties into Canada are prohibited. Variety owners also may place additional restrictions on seed of their varieties sold into Canada, and these most commonly include restrictions on eligible seed classes.
Sebesta says, “It is important for seed producers and retailers to understand seed intellectual property rights laws to maintain the integrity of the seed industry in North Dakota.”
For additional information and guidelines on marketing seed of protected varieties into Canada, see the “2018 Field Seed Directory,” published by the NDSSD.