Is your wheat legal?
Proprietary wheat protected; lawsuits filed against farmers, seed companies

By KRISTY HEMMINGSEN | East Texas Edition

November 6, 2003 -- Lack of rain could be causing wheat producers to worry about this year's crop, but questions they should be asking include "Where did my wheat seed come from?" and "Is my wheat seed illegal?" and "What variety/varieties of seed do I have?"

The reason for these questions is under the Plant Variety Protection Act (PVPA), which says protected wheat seed, such as COKER, Century, Pioneer, and Agri-pro, may not be sold, resold, or used to produce seed without permission of the developer.

Currently, several lawsuits have been filed to prevent further illegal sales of proprietary wheat - which means grain made and sold by one with the sole right to do so. In other words, a farmer can't purchase seed from an individual who harvested the seed from a previous year's crop.

Syngenta Seeds recently filed three lawsuits against Buck Island Seed Company, Tunica, Miss., and their seed distributors in Arkansas and Mississippi; El Dorado Chemical Company, El Dorado, Ark., and their retail locations in Texas, Missouri and Tennessee; and MBS Seed, Ltd. Co. in Denton.

Syngenta was recently awarded a $150,000 judgment that was filed against Prairie Farmers Association, Hazen, Ark., for illegally selling proprietary NK® Brand COKER® 9663 wheat seed.

Other lawsuits allege infringement of intellectual property rights of Syngenta Seeds under the PVPA and the unauthorized use of trademarks. Damages are being sought to recover lost royalties and profits, according to an Oct. 9 news release.

So what does this mean for the farmer who has already planted wheat and is now wondering if they've done something illegal?

The answer, according to Duff Nolan, an attorney representing Syngenta, is to call 888-567-3422 and report they have purchased seed that could be illegal.

Farmers who bought seed from a neighbor and it is a variety owned by Syngenta, then it is illegal wheat. Illegal wheat can also have been purchased from a seed company.

Nolan stated that if a farmer buys or has bought wheat from their neighbor, they should get a letter from the person they bought it from stating the wheat is legit and not one of the varieties owned by Syngenta.

If the farmer calls Syngenta's toll-free number, he or she can remain anonymous, but Nolan said, "it is in their best interest to report their name and where they got the seed. We will work with him so he would not be brought into a lawsuit. Anybody who works with us, we will provide some consideration."

Once the illegal wheat is planted, which triggers the violation, the farmer has some options. They can take the harvested product to the mill or put into feed bins for their own use. Importantly, they can not sell it for pasture wheat.

Farmers are in danger if they sell illegal wheat. Some companies are making examples out of those who have sold illegal wheat, commented several seed brokers.

"Farmers need to make sure their wheat is legal," stated one broker.

"If a farmer wants to save his own wheat to replant for himself, that's not illegal," Nolan stated. "We have made a sincere effort to educate seed companies and farmers about illegal wheat."