ASTA’s Follow-up Information on Intellectual Property Considerations for Prevent Plant

Jul 03, 2019

We received the following question on planting corn and soybeans as a cover crop in a prevent plant situation:

        Question: Can a farmer plant soybeans that they have stored?

The American Seed Trade Association encourages growers to reach out to their seed suppliers to ask these kind of questions.

Additionally, the experts at the Seed Innovation & Protection Alliance (SIPA) remind farmers that intend to use corn or soybeans as a cover crop or for sileage, to review their seed contract obligations as well as any patent or PVP rights associated with the seed. (The following is not legal advice).

In general, using bin run corn or soybean seed (previously harvested grain) for the planting of a cover crop or sileage would most likely be a contract violation as well as potentially a violation of patent and/or Plant Variety Protection (PVP) rights, if the original seed was obtained through a limited use license and/or has patent protection and/or PVP protection. 

However, in the case where seed is only protected by PVP rights, if the grower intends to plant bin run seed from the grower’s own holdings, it may fall within the farm save seed carveout of PVP protection and may be used for a cover crop or sileage. However, a grower should still be mindful of any contract or patent rights also associated with the PVP protected seed. 

In the case of prevented planting acres, if the seed that is planted for a cover crop or sileage is the same seed that was purchased and is not previously harvested seed, then the planting of a patented seed for a cover crop or sileage may be permitted, provided there are no contradictory contract terms.