Author Topic: legal status of many varieties investigated  (Read 1266 times)

Carol Deppe

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legal status of many varieties investigated
« on: 2019-01-14, 01:13:25 PM »
It is increasingly the case that many retail seed companies are signing licenses and bag-tag agreements THAT SIGN AWAY THEIR CUSTOMER'S SEED RIGHTS without telling the customers. This potential loss in seed rights actually affects far more varieties than those that have PVPs or patents. It can even affect op and heirloom varieties that the wholesale supplier had nothing to do with developing. So, for example, if you buy Chiogga beet, an heirloom, the retail seed company may have signed a license with their supplier that no seed saving or breeding is allowed with the seed. It is a new mode and level of seizing of our rights that is for the moment being largely kept secret from retail seed customers. CR Lawn, founder and leader of Fedco up until 2018, became aware of the problem. His paper outlining the problem, CR’s article “SEED SOVEREIGNTY: Taking Back the Seed Commons” is in the 2019 Jan/Seed issue of Acres/USA. It’s on newsstands now.
 
This article describes the problem in detail. In addition, there are lists in the back that list all the wholesale suppliers Fedco uses and what restrictions they are putting on their seed. In addition, there is also a list of all varieties Fedco carried as of 2017 that have ip of any sort on them, including these invisible licenses and bag tags Fedco signs, the supplier, and the exact restrictions. CR put this info in the variety descriptions for the 2017 Fedco catalog, but he retired in spring of 2018, and those at Fedco dropped the info out of the descriptions, restoring the invisible seizing of seed rights that they felt uncomfortable pointing out. (No no other seed companies are pointing out these invisible restrictions. An nearly all large retail seed companies use these big suppliers and are accepting such licenses and bagtags.)

If you get the Acres/USA Jan issue, you will have a list of all restrictions on all Fedco varieties that had restrictions, and the exact rights restricted for each. In addition, if you have the 2017 Fedco catalog, you have an additional list of many hundreds of varieties that have no restrictions, since they weren't on the restricted list. (The same doesn't apply to later catalogs, since Fedco's new listings would not have been investigated by CR.)

Here's a specific example. Let's suppose that you bought Chiogga beet, an heirloom variety, from Fedco or someone else. Does it have IP on it? So, looking it up in CR's article, I find that Fedco bought it from Sakata, and that the seed came with a bag-tag agreement that limits the user to growing a single crop only. No seed saving or breeding is permitted. Furthermore, Sakata claims that this bag-tag binds all third party users, that is, Fedco customers.

What it amounts to is these major suppliers put the same bag-tag or licenses on all the seed they supply, whether they bred it or not. So Sakata has actually put IP on their part of the seed stream of Chiogga beet.

What about buying it from somewhere else? Well, there's actually a good chance that many/most of the other retail seed companies are also buying Chiogga from Sakata and are accepting the same bag-tag agreements. So going elsewhere for Chiogga doesn't solve the problem necessarily.

It is legal to put a bag-tag agreement on any seed you distribute. It doesn't affect seed of the variety distributed independently. Only the seed obtained with that bag-tag. So small seed companies that grow their own Chiogga from seed they got before these bag-tags would still have IP-free Chiogga. But a small seed company that bought bulk from Fedco for repacking might unknowingly be distributing restricted seed.

I personally think that the binding of third party users is not legal unless they know about it and have agreed to it. Bag-tags and licenses fall under contract law. With contract law, you aren't bound by it unless you know about it and have agreed. PVPs and patents, on the other hand, are laws, and you are bound by laws whether you know about them or not. So Sakata and others may be saying their bag-tags and licenses bind third parties, but I don't think they. However, this would not necessarily do you a lot of good if Sakata sued you. There is the tendency with the guys with the most money and biggest legal department to win.

I think the biggest danger is that these restrictions are secret. Seed companies are not telling us they are signing stuff that say that the varieties are one-time-use rentals instead of real sales. Right not these big suppliers are not insisting that the retail seed companies tell us about the restrictions. But if retail companies continue buying from these suppliers and accepting these terms, we can figure at some point the wholesalers will suddenly start enforcing all these restrictions. That is, after their retail seed company customers are so dependent on them that there is no other practical source for the varieties. (Even for an heirloom, it's not easy to find a supplier who supplies it in the huge amounts needed at good quality year after year.)

What I would like to see is every retail seed company doing what Fedco did in 2017--telling us exactly what rights we are and aren't buying in the description of every variety. It actually just takes a code number. And one-time paying attention to the bag-tags and licenses and identifying each variety by code.

It is my hope that if customers knew they were only buying the rental of the use of the seed for one year, they would scream loudly enough so that the retail seed company would have some incentive to negotiate those restrictions out of the stuff they sign or find different suppliers.





Joseph Lofthouse

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Re: legal status of many varieties investigated
« Reply #1 on: 2019-01-14, 04:37:51 PM »
A week or so ago, I had a customer tell me that they weren't buying any OSSI varieties from me because of the associated bag-tags. He said,  "Too much to keep track of.".


Carol Deppe

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Re: legal status of many varieties investigated
« Reply #2 on: 2019-01-14, 07:10:41 PM »
Right. The OSSI Pledge is itself a bag-tag agreement. It's no restriction if you intend not to restrict. For those who want to restrict, it's the worse restriction you could have. For example, if I patented one of my varieties, a Gene Giant would normally be able to buy it or license it to develop patentable derivatives. But with an OSSI-Pledged variety, not even the breeder has the right to allow patenting of derivatives. So if your purpose is to develop proprietary varieties, OSSI varieties don't work. In a chapter in a recent issue of Plant Breeding Reviews on corn breeding in Monsanto, in fact, the authors fumed that open source germplasm was "too infectious to touch". "Right!" I say. "They get it!" OSSI is a protected commons. They are used to being able to take from the commons to create proprietary varieties and not give anything back to the commons. A one way stream. Commons dont last when the users have no rules to prevent their being despoiled. Only protected commons last. OSSI sets up a protected commons. The cost is a little bit of paperwork and tracking.

So far, no university breeder has used any OSSI germplasm in their breeding program and developed finished varieties. No surprise, since universities expect their breeders to develop varieties they can license. However, three university people at three different universities are breeding with some of my varieties. However, this will undoubtedly always be the exception rather than the rule, given the commitment of universities to the proprietary model. And note that university breeders dont use the germplasm of other university breeders either. To use it would require cutting in the other u for a share of the royalties. And nobody wants to spend years developing something and have that situation.

William S.

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Re: legal status of many varieties investigated
« Reply #3 on: 2019-01-14, 07:21:51 PM »
https://bifurcatedcarrots.eu/2019/01/more-on-ossi-clarity-and-risks/

I saw this didn't really read it, it seems to be a suspicious of OSSI anti OSSI rant blog post. Like maybe it's all a scheme to keep us backyard breeders poor and unfunded?
Western Montana garden, glacial lake Missoula sediment lacustrian silty clay mollisoil sometimes with added sand in places. Zone 6A with 100 to 130 frost free days

Carol Deppe

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Re: legal status of many varieties investigated
« Reply #4 on: 2019-01-14, 07:31:19 PM »
By the way, generally breeders who OSSI-Pledge finished varieties are finding it much easier to get their varieties introduced. There are dozens of OSSI Partner seed companies that participate enthusiastically and are eager to trial and carry more OSSI-Pledged varieties. Many of these companies even have special sections listing their OSSI varieties. I think any good new finished OSSI variety these days has a good chance of being taken seriously and trialled by multiple seed companies immediately, even if presented by a newcomer with his or her first variety. Used to be, seed companies often ignored freelance newcomers for years, decades even. Not any more.

Carol Deppe

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Re: legal status of many varieties investigated
« Reply #5 on: 2019-01-14, 08:07:52 PM »
https://bifurcatedcarrots.eu/2019/01/more-on-ossi-clarity-and-risks/

I saw this didn't really read it, it seems to be a suspicious of OSSI anti OSSI rant blog post. Like maybe it's all a scheme to keep us backyard breeders poor and unfunded?
Very long rant. Very garbled and confused. And anonymous. I'm not going to bother responding. There are legitimate reasons why someone might prefer a public domain model, however. A reasonable case can be made for it and against OSSI. But this isnt that reasonable case.

I will respond to two things. The author says lettuce is self pollinating. This factual error means he/she doesnt understand the nature of the gene pool lettuce mixes from Wild Garden and Adaptive. And of course, lettuce, like most self pollinators, is only mostly self pollinating. It outcrosses enough so you can get any cross you want just by interplanting the varieties. And if two different seed companies interplant their own choice of lettuce varieties and grow and select the result for a number of years, they will end up with two different gene pool mixes, each of which can be Pledged.

A second issue. Sometimes gene pool mixes may include pure varieties. So Wild Garden sells many gene pool mixes that include both pure Pledged and unpledged varieties as well as segregating crosses and other OSSI-Pledged stuff. So these mixtures include both genetic and physical mixtures of seed. Where a physical mixture includes any OSSI-Pledged material, it's necessary to sell the mix as Pledged to prevent Pledged material from being transmitted without the Pledge. It's not a perfect solution, just the best we can do.

Andrew Barney

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Re: legal status of many varieties investigated
« Reply #6 on: 2019-01-14, 08:30:18 PM »
https://bifurcatedcarrots.eu

The Bifurcatedcarrots blog is run by Patrick. He used to be very active on the old Alan Bishop Homegrown Goodness forum.  He is an American who moved to Europe. He is a pretty cool guy from what I remember. He probably is a member on this forum already, but i wouldn't know.

I think he is anti GMO as I seem to remember many comments about things in Europe and people destroying Corn fields over there. But I could be misremembering. Perhaps his old blog posts were just reporting on it.

William S.

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Re: legal status of many varieties investigated
« Reply #7 on: 2019-01-14, 09:39:21 PM »
Curious if we might soon get OSSI to the point where many seed catalogues can be filled entirely with OSSI pledged varieties. Kind of like Carol's catalogue!
Western Montana garden, glacial lake Missoula sediment lacustrian silty clay mollisoil sometimes with added sand in places. Zone 6A with 100 to 130 frost free days

Carol Deppe

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Re: legal status of many varieties investigated
« Reply #8 on: 2019-01-14, 11:29:46 PM »
Curious if we might soon get OSSI to the point where many seed catalogues can be filled entirely with OSSI pledged varieties. Kind of like Carol's catalogue!

That's the aim. We are a ways off. OSSI has more than 400 Pledged varieties now. A person could do very well growing or selling only OSSI-Pledged tomatoes, lettuce, kale, mustard, sweet corn, flint and flour corns, beans, squash, orach, quinoa, peppers. But there is a whole lot we need. In addition, because of the strong concentration of OSSI-associated breeders in the NW, we have much more that is optimized for the NW than for elsewhere. We need more OSSI-associated breeders everywhere else, especially the SE, the Midwest, Canada, and Australia.

We don't have a single OSSI-Pledged fruit or nut tree or bush at all. Not one. We also need fruit tree rootstock varieties. Those are pretty much all coming out patented these days. 


Joseph Lofthouse

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Re: legal status of many varieties investigated
« Reply #9 on: 2019-01-14, 11:55:29 PM »

I'm currently growing a row of about 30 two year old apricot seedlings. So many traits to select for in a tree, and so few seedlings.  It's a decade long process to know if any of them will work well as scions. I'm really looking forward to the first flowers, and to tasting the first fruits. Second year growth was much more vigorous than I expected.

Ocimum

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Re: legal status of many varieties investigated
« Reply #10 on: 2019-01-15, 07:16:31 AM »
Being from Europe, I wonder about the legality and enforcability of these material transfer agreements here.
There is a breeder's derogation (Züchterprivileg) which allows breeders to use PVP protected varieties to breed new ones.

Andrew Barney

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Re: legal status of many varieties investigated
« Reply #11 on: 2019-01-15, 09:38:42 AM »
Yeah, I've signed a few material transfer agreements myself, and I will need to go back and look in more detail,  but half of them were very loose and can be interpreted multiple ways that they may have loop holes. I honestly didn't feel restricted at all,  so I was fine with them. Each place has different terms.

I found this podcast from the TED radio hour very interesting on this topic.

https://www.npr.org/programs/ted-radio-hour/321797073/what-is-original

Carol Deppe

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Re: legal status of many varieties investigated
« Reply #12 on: 2019-01-15, 02:40:16 PM »
Being from Europe, I wonder about the legality and enforcability of these material transfer agreements here.
There is a breeder's derogation (Züchterprivileg) which allows breeders to use PVP protected varieties to breed new ones.

Material transfer agreements are contracts, and are enforceable as contract law.

In USA, it's legal to breed from PVPed varieties with three exceptions. First, you cant use a PVP to produce an F1 hybrid for sale as a hybrid without permission. Second, you cant legally develop something by multiple rounds of recurrent backcrossing to the PVP variety without permission. It isnt spelled out how many recurrent backcrosses are permitted before the derivative is considered a violation. Third, a sport may or may not also be covered by the original PVP. If it is, if you breed from the sport, the result could still be owned by the holder of the PVP on the original variety.
« Last Edit: 2019-01-15, 02:46:02 PM by Carol Deppe »

Ocimum

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Re: legal status of many varieties investigated
« Reply #13 on: 2019-01-16, 08:07:17 AM »
It is interesting that you mentionned Chioggia, as it is an old variety (or derivated of) already known in the 1800's. That means that I could take seeds of a variety, make a MTA contract allowing no one to breed from it, and be the owner of it.

But on this
Material transfer agreements are contracts, and are enforceable as contract law.
...
I am not sure if Europe has the same laws. Some contracts are not valid in all countries.

Beside the ethical and biopiratery problem, I will never be sure if someone worked with my material or a similar one. As an example with Chioggia, if the "owner" attacks me for using his material, he will not be able to prove wether I used his material or one which predates his "ownership". On the other hand, if I keep some of the original seed, I may be able to prove genetically that it is different, i.e. less inbred than his by doing some expensive genetic tests. In other words, the only one able to prove that he using "owned" material is the one using it. The other cannot prove it. And with the presumption of innocence it does not work...

Now what if person A gives B seeds with a MTA stipulating B cannot use it for breeding. B shares seeds with C without telling C about it at a seed fair with thousands of people, no record keeping. C uses the seed to breed a new variety. How is A going to go against C? What could happen to C or his variety?