When can farmers use saved seed?
As a plant breeder's rights (PBR) owner, you control the commercial use of your variety. However, you can't prevent a legitimate customer from reproducing propagating material for use on a farm.
Farm saved seed (FSS) can be used when:
- A farmer has purchased the original PBR protected variety (G0 or generation zero) and paid a royalty
- The propagating material is used to sow their next crop. Selling material produced by G0 is allowed but using material for cattle feed on farm isn't.
There is provision for some species of plants and seeds (taxon) to be made exempt in Australia, but so far, none have (see below).
How does farm saved seed impact my PBR?
In Australia there has been limited testing in the courts of the impact of FSS exemptions on PBR. The court case described below provides some guidance on how the federal court interpreted the FSS provision but we recommend seeking professional assistance if you need more information.
In 2004, the federal court examined a case involving plant breeder's rights and how they could be considered in relation to FSS, which sheds some light on how the court sees the issue.
Cultivaust Pty Ltd v Grain Pool Pty Ltd involved two aspects that involved FSS:
- Authorisation - whether propagating material had been produced without the PBR owner's consent
- Reasonable opportunity - whether the PBR owner had reasonable opportunity to exercise their rights over the propagating material.
The court found that growing first generation crops (G1) from seed (G0) bought from a PBR owner was allowed because consent was implied in the original sale. Commercialisation of G1 crops is legitimate unless sold as ‘seed’.
However, selling subsequent generations (G2+) grown from farm saved seed requires the PBR owner's permission. This is because:
- Authorisation to sell isn't implied by supplying the initial seed
- The farm saved seed exemption only allows the farmer to use G1 to grow crops G2+, but not material produced G2+
- Subsequent generations (other than saved seed) are also protected by PBR.
2. Reasonable opportunity
The court decided PBR owners had reasonable opportunity to exercise their PBR rights when selling the initial seed. It also allows owners to set additional conditions for use of the seed, including authorisation, reporting or payment.
What it means
Be sure to set up appropriate commercial arrangements at the time of the first seed sale. If you don't, it could be difficult for you to argue that you didn't have a reasonable opportunity to exercise your PBR.
How to manage farm saved seed provisions
As a PBR owner, here are some strategies to manage the potential impact on your PBR:
PBR owners can request contracts restricting multi-generational reproduction of the propagating material. These arrangements are based on contracts between the parties, not the PBR Act.
The Variety Central website is a good place for more information on seed commercialisation, including contracts to manage collection of end point royalties which is a popular way of commercialising seed.
This model of seed sharing between farmers is being successfully used for some varieties. Here's how it works:
- The seller is licensed to sell or trade harvested seeds over the fence to another farmer, provided they complete a seed sharing agreement with the purchaser and return it to the PBR owner
- This allows the PBR owner to establish a commercial arrangement with the new farmer.
The PBR Act includes a condition that allows PBR regulations to be amended to declare a particular taxon exempt from the FSS provision. To date, no declarations have been made.
To be successful in such a bid, you'd have to demonstrate a clear market failure to balance public and private interests.
If you want further information about the circumstances when such a declaration might be made, you can contact us via PBR@ipaustralia.gov.au