Seed industry reaches settlement with plant breeders’ rights violators

PBR-protected seed varieties must be sold as commercial grain

Member-owned seed distribution company SeCan has reached out-of-court settlements with seven western Canadian farmers who were illegally selling or attempting to sell seed varieties protected by plant breeders rights.

Todd Hyra, SeCan’s business manger for Western Canada, said six commercial grain growers in Saskatchewan and one in Manitoba reached settlements with SeCan after illegal sales activities were discovered.

“Our goal is to continue to educate (growers),” Hyra said in a recent news release.

“Part of education is the willingness to take the step to enforce the rights on behalf of the breeder.”

Under PBR regulations, grain farmers can buy and grow PBR-protected seed varieties, but the harvested crops that are produced from that seed must be sold as commercial grain.

Growers can also save harvested grain and replant it on their own farms, as long as farm-saved seed rights are not pre-empted by another agreement or legal contract.

However, they are prohibited from selling harvested seed to other farmers as common seed, regardless of whether the variety name is advertised or not.

Hyra said cases of PBR infringements involving SeCan varieties spiked in 2015 but have been declining since then.

In general, the number of infringement cases fluctuates from year to year, depending on conditions, he added.

“It depends on the year, (and) it depends on the growing conditions,” he said.

“Occasionally, in a tough year, somebody might have some grain in the bin and decide … that there may be an opportunity to sell it as seed … but I think the message is getting out … that there is protection in place (for PBR varieties) and that seed companies are willing to protect the rights of their breeders.”

Hyra said the seed industry is taking a tougher stance against PBR infringers than it has in the past.

“PBR has been in place now for 25 years,” he said.

“We want to make sure that people know that we’re taking PBR infringements seriously — we’re moving from talking about it to letting people know that we’re actually enforcing it.

“If somebody’s advertising and selling a product illegally, it’s no longer just a slap on the wrist.… We’ve had a number of (farmers) receive that in the past and then come back (and do the same thing) a few years later, so we’ve had to take a little harder approach.”

Producers who want to capture added value from the crops they grow have the option of becoming pedigreed seed growers, he added.

“There’s a process that allows them to become … part of the system, rather than working around it.”

Lorne Hadley, executive director of the Canadian Plant Technology Agency, said his organization continues to work on educating Canadian farmers about PBR protections and the consequences of violating PBR rules.

It also monitors the marketplace for potential violations and co-ordinates enforcement action at the direction of rights holders.

Typical settlements might include an admission of wrongdoing, a signed declaration promising to cease illegal sales and a monetary settlement aimed at covering investigation costs and the value of uncollected seed royalties.

“In terms of whether we’re getting more active (on enforcements), really what we’re doing is getting more active against people that have received a warning and ignored us,” Hadley said.

“We want to make sure that producers know this is real. It can happen if you’re offside … and the primary way to avoid being offside with PBR legislation is to purchase pedigreed seed.”

Hadley said growers who receive a warning or demand letter related to a PBR violation should stop the activity immediately and seek a settlement.

“That’s the best alternative (and) the least costly alternative,” Hadley said.

Under new PBR ’91 rules, both the seller of protected seed and the buyer are responsible for ensuring that the transaction they’re involved in is legal, he added.

“If you’re looking for a specific variety (of protected seed), you should be … buying pedigreed,” he said.

“And if someone is offering to sell you seed, you need to ask the question: is it pedigreed seed and do you have the right to sell it to me?”

Recent settlements stemming from PBR infringements involved farmers Cory Dawe from Dinsmore, Sask., Richard Erle Bredahl from Shaunavon, Sask., Dylan Szakacs from Melfort, Sask., Chad Swan from Plenty, Sask., Ian Topham from Eastend, Sask., Clayton Miller from Young, Sask., and G5 Farms Ltd. from Oak River, Man.

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