What does patented seed mean? What is a seed utility patent? Can plants and seeds have intellectual property rights? If you’re wondering along these lines, you’re not alone! We started coming across seeds we thought were open-pollinated and fair game for seed saving this past year and were surprised to find restrictions on saving seeds that went beyond hybrids and GMO-seed.
Background
I work a small part-time gig for my husband’s market garden farm and one of my main roles is seed starter for transplants. Over the past year, we started to notice that more and more of the seed varieties we had been planting for years were suddenly patented. Weird. We knew most of them to be open-pollinated varieties and we purchased them on purpose as the market farm sells an heirloom lettuce mix and intentionally avoided hybrids for that mix. What was going on?
We opened the can of worms…
Open-Pollinated seeds can be utility patented
For years myself and other gardening content creators have instructed people to find open-pollinated or heirloom varieties in order to save seed from them. But it turns out open-pollinated seeds can be utility patented. So “open-pollinated” is not the only information aspiring seed-savers need to be looking for on seed company websites and in their seed catalogs.
What is a seed utility patent?
A utility patent (at least in the context of seeds) is issued for a particular trait that a breeder has bred into their seed stock. For example, a particular disease resistance. A seed utility patent disallows the patented seed from being saved for replanting, selling or even giving away. These patents last for 20 years! If you want to know more about the intellectual property protections around seeds and plants, you can check out this article on the USDA website.
Open Source Seed Initiative
While doing the initial research for this blog post, I came across the Open Source Seed Initiative. They have a list of seed growers and sellers committed to seed freedom, as well as, a searchable list of OSSI-pledged seeds varieties and where to purchase them. We will definitely be utilizing their website in the future to find patent-free seed! Here is their Four Open Seed Source Freedoms Pledge:
- The freedom to save or grow seed for replanting or for any other purpose.
- The freedom to share, trade, or sell seed to others.
- The freedom to trial and study seed and to share or publish information about it.
- The freedom to select or adapt the seed, make crosses with it, or use it to breed new lines and varieties.
Seed Companies and their Patented Seed Status
Armed with this new knowledge about seed utility patents, I began checking out the websites of the seed companies that we have either ordered from personally or for the market farm business and have compiled the following alphabetical list below for your quick reference:
Baker Creek Heirloom Seeds
Baker Creek (rareseeds.com) does not sell patented seeds at all. So seed save to your heart’s content! From Baker Creek’s, A Glossary of Seed Terms:
“Baker Creek never sells patented varieties. All of our seeds are open pollinated and open sourced, which means there are no legal ramifications for using these beautiful and storied heirlooms to breed your own special varieties. We support and celebrate the work of open-source breeders to ensure that resilient and useful plant genetic characteristics are always available to anyone.”
Fedco
Fedco Seeds is a partner of the Open Source Seed Initiative (OSSI) and was a plaintiff against Monsanto about patented and GMO seeds. While they are passionate about defending seed saver’s rights and do not carry utility patented seeds, they do have some “Plant Variety Protected” seeds that do have limitations on seed saving. These are labeled in their descriptions.
High Mowing Seeds
While High Mowing Seeds does sell patented seeds, I appreciate their transparency and explanatory materials on their website. They have a page dedicated to explaining in simple language the different patents, royalties, and seed designations that affect their use. And they also seem to consistently label their patented seeds on their product pages for easier identification. The online shop lacks a way to filter patented seeds in search results, but at least the product pages provide that information. They are listed as an Open Source Seed Initiative (OSSI) partner, but I could not find a way to filter search results for OSSI seeds.
Johnny’s Seed Co.
It took a little digging to find their PDF about Intellectual Property Rights in Plant Breeding, but they at least do have some explanatory material on their website about the different seed designations. Thus far any patented seed we have purchased from them is clearly marked on the packet, so we can quickly reference its status in our seed collection. However, at the time of this writing, the varieties that are patented are inconsistently identified on their website product pages. Some patented lettuce have a note in their description online and others don’t. If you want to save seed from a particular variety, you might want to contact them directly to make sure it is not protected by a utility patent. We’ve had a few surprises where we filtered for open-pollinated seed and found one without a patent listed in the description…and then had patented seed show up in the mail.
Seed Savers Exchange
Their whole mission is to encourage and teach growers to save seeds. So if you want to become a seed-saver, get on their seed catalog list. The “Provider” green beans we grow in our family garden each year originally came from them. High-quality seeds that have saved beautifully for us over the years.
Southern Exposure Seed Exchange
Southern Exposure is an active advocate for seed saving rights and was one of the plaintiffs against Monsanto about patented and GMO seeds. They even have a whole webpage devoted to how they are working towards defending and promoting everyone’s right to save seeds. Safe place to order seeds that you wish to save in the future!
Sow True Seeds
Sow True Seeds does not sell patented seed varieties either. So seed save all you want! From their “About our seed” website:
“We believe seed production is an integral root of a secure food system. By selling only open-pollinated seed, we provide our customers with the opportunity to build their own little corner of a secure food system.
Furthermore, we do not carry any seeds under a Plant Variety Protection or Utility Patent, which makes saving seeds unlawful. We do not believe that anyone should own exclusive rights to a seed, variety, or set of genetics.”
Survival Garden Seeds
While I could not find a policy statement on their website about patented seeds, their marketing material focuses on heirloom and open-pollinated varieties that they encourage customers to save year-after-year. They also have several blog posts related to saving seeds and include seed-saving instructions on the packet of all their seeds. So probably a safe option for seed-saving across the board.
Territorial Seeds
At the time of this writing, I could not find on their website or product pages anything identifying which varieties are patented. I was using lettuce varieties as my test subjects as I already knew the names of some patented varieties. I looked through all the specs on the seed product pages and couldn’t find anything identifying them as patented, but it did identify them as open-pollinated. I contacted Territorial and received 2 differing replies. One told me that they were patented and another said they did not sell patented seed and I was provided with their Safe Seed Pledge to not sell genetically modified (GMO) seeds or plants as well as their organic certification.
As of June 2024, I reached out again and was told by another employee that they do not sell any patented seeds. I asked about the ‘Brentwood’ variety that they sell as an example since according to US Patent No. US10542698B2, ‘Brentwood’ has been patented since 2018 and this same variety is listed as utility patented on multiple seed company websites. They replied back that some of their ‘Brentwood’ seed actually *is* utility patented. If you want to make sure if a particular seed is utility patented or not, you’ll probably have to go back and forth with customer service a few times to double check.
True Leaf Market
Under their terms and conditions page, there is a legalese section about patented seed that they sell. This was the first time I had read that it’s the grower’s responsibility to remove any plants from the field within 30 days of the final harvest. Yikes! Like most small homestead growers, I’m not that precise in my planting and harvesting schedules.
“Buyer acknowledges that some of the seeds sold by Seller may be proprietary varieties which are protected by utility patents and/or plant variety protection certificates, which have been applied for or issued, as stated on the seed label. In the event that a propriety variety belonging to, or licensed by, Seller is sold to Buyer, then Buyer acknowledges that all strains, lines and varieties thereof are for restricted use only, for the sole purpose of producing crops for human consumption, regardless of whether or not a utility patent or plant variety protection certificate has yet to be issued for the seed. Buyer acknowledges that all intellectual property rights to reproduce or propagate the proprietary variety of seed are for the benefit of, and are the property of, Seller, and Buyer agrees that Buyer will not propagate the proprietary variety of seed, directly or indirectly, except as necessary to produce a crop from the seed. In addition, and without limitation, Buyer agrees that no plants will be dug up and taken from the field as living plants; and Buyer agrees to disc up any plants remaining in the field within thirty (30) days after final harvest of any crops grown from the seed.”
However, I was unable to find a seed variety patented on their website or a way to filter for them. I reached out to them in June 2024, and they emailed saying: “We cannot think of any PVP varieties we are currently selling. They are rare, and PVP strains are the only type of patenting that we are aware of.” Seems odd that they have a disclaimer for something that they don’t sell?
Wild Garden Seeds
Wild Garden Seeds is another member of the Open Source Seed Initiative (OSSI) and is committed to dedicate all the original varieties they have developed to the OSSI. Right on their home page is this pledge: “You have the right to use these OSSI-pledged seeds in any way you choose. In return, you pledge not to restrict others’ use of these seeds or their derivatives by patents or other means, and to include this Pledge with any transfer of these seeds or their derivatives.”