Seed licensing emerges as last-minute issue in spending talks

By Philip Brasher

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, Dec. 10, 2015 - The seed industry is scrambling to head off an effort by a small Mississippi company to use a year-end spending bill to renew its expired, patent-like protection for a variety of ryegrass. 

Officials with the American Seed Trade Association (ASTA) say extension of plant variety protection for the Marshall ryegrass variety would set a bad precedent and raise questions about whether the United States will follow its own licensing law.

The group worries that Senate Appropriations Chairman Thad Cochran, R-Miss., will insert the extension into a fiscal 2016 omnibus spending bill on which congressional leaders are finishing negotiations. 

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“It's a very poor precedent in any future situations where PVP expires,” Andrew LaVigne, president and CEO of the industry group, told Agri-Pulse. The time limit on licensing “is really meant for the public good to bring the product out to the marketplace.”

PVP protection is normally restricted to 20 years. The Marshall variety was originally given 18 years of protection, but the license holder, Wax Co. Inc., persuaded Congress in 2004 to provide a 10-year extension. 

After the extension expired last year, rival companies produced an estimated 500,000 pounds of seed and have another seed crop in the ground. The producers could lose control of the seed if the PVP extension is enacted, according to ASTA. 

“If Congress were to take the misguided action of extending the PVP for Marshall Ryegrass a second time it would show total disregard for the intellectual property laws and legally binding contracts which are the backbone of not just the seed industry but innovation in the U.S.,” ASTA said in a Dec. 4 letter to the leaders of the Senate Agriculture Committee and to Cochran and the top Democrat on Appropriations, Barbara Mikulski of Maryland. 

“It would also put the seed producers who are currently holding legal stocks of non-PVP Marshall Ryegrass seed in legal jeopardy,” the letter said. 

A spokesman for Cochran, Chris Gallegos, declined comment. “Negotiations are ongoing and we are not speculating on what provision will or won't be included in a final agreement. We're working toward an agreement.”

The Wax Co. didn't respond to a request for comment. 

The Agriculture Department's Plant Variety Protection Advisory Board, which monitors enforcement of the Plant Variety Protection Act, voted unanimously to oppose the 2004 extension for the Marshall variety and again in 2014 and this year.

ASTA fought the 2004 extension as well. 

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Risa DeMasi, co-founder of Grassland Oregon Inc., a seed breeder, said “the PVP system is something we all work with. Hundreds of varieties fall off PVP every year... It breeds mistrust if this precedent is set.” Her company has its own genetics and doesn't use the Marshall variety, she said. 

Congressional leaders have been negotiating over dozens of possible policy riders for the omnibus, including provisions that could repeal the country-of-origin labeling law for beef and pork and block the Obama administration from implementing its rule re-defining the jurisdiction of the Clean Water Act. 

The Senate approved a stopgap spending bill Thursday that would fund the government through next Wednesday and give more time for the negotiations to continue. 

The top Democrat on the Senate Agriculture Committee, Debbie Stabenow of Michigan, said she expected the omnibus to include the COOL law repeal but not a measure to preempt state GMO labeling laws. Food companies and agriculture interests also have been lobbying Congress to pass a temporary, two-year preemption to give them time to finish negotiations on a permanent bill setting national GMO standards. 

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