Growing wheat from ‘common’ Faller could get expensive

The Canadian Plant Technology Agency is warning unauthorized seed sellers and potential buyers to avoid trading in “common” seed for the Faller wheat variety.

“CPTA regards this situation as very important,” said Lorne Hadley, executive director of the seed industry-backed Canadian Plant Technology Agency, in a release late last week. “Seed sellers and growers are advised to steer clear of possible legal action by avoiding the purchase of ‘common’ Faller wheat seed.”

Faller is a red spring wheat variety, well-adapted and in demand by producers in southern Manitoba, developed by North Dakota State University (NDSU) and assigned to the NDSU Research Foundation (NDSURF).

In Canada, NDSURF has granted distribution rights for this seed variety to Seed Depot Corp., based at Pilot Mound, Man.

Faller is not yet registered in Canada, but Seed Depot has entered it into trials and has received approval for market development in closed-loop contracts in co-ordination with two Winnipeg grain companies: Richardson International and Parrish + Heimbecker.

All of the acreage under these contracts will be seeded using pedigreed seed.

However, that hasn’t stopped some Faller seed from finding its way into Canada outside these legal channels, triggering a number of legal issues.

It’s a violation of U.S. law for anyone to directly or indirectly export seed of Faller outside of the U.S. without authorization from NDSURF.

“This includes seed or grain of any nature or classification that is exported into Canada and converted to seed after it crosses the border or seed that is mislabeled as another variety until after it crosses the border,” NDSURF executive director Dale Zetocha said in a previous release on Faller in March.


Seed Depot and NDSURF have already taken actions to stop sales of “common” Faller in Canada. To date, a significant financial settlement has already been negotiated with one Canadian seller.

NDSURF has said it intends to enforce its rights over the harvested material of unauthorized production of Faller in Canada. For any grain produced from “common” Faller in Canada where a producer of the grain can’t prove a seed royalty was paid (that is, a purchase of certified seed), NDSURF may sue for damages and legal and investigative costs.

Lawsuits of this nature will be filed on the person who has ownership of the grain at the point of discovery in the U.S. In recent settlements, standard damages have been three times the normal seed royalty plus legal and investigative costs. For this reason, producers planting “common” Faller may have difficulty selling their grain, especially for shipments intended for U.S. markets.

Violators are subject to the collection of attorney fees, other costs and harvested material, Zetocha added in March. “The court could, upon request, order the infringer to immediately cease the growing and/or sale of all NDSURF-protected varieties.”

CPTA — based in Saskatoon and formed to educate the public on and help enforce plant breeders’ rights — also reminded seed sellers that the sale of “common” wheat seed of an unregistered variety is a violation of Canada’s Seeds Act.

Related stories:
IP program portends changes to registration system, Feb. 28, 2013
Parrish + Heimbecker has a Faller wheat contract for 2013, April 9, 2013


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