Release and Distribution of Cultivars

Making the decision to release a new cultivar

The process for deciding on the release of a new cultivar varies among private companies and public institutions. For public institutions, the process described in Appendices B and C of Principles of Cultivar Development has changed since the text was written; therefore, the two sections were excluded from the reading assignment. Today, every public institution has an independent process for handling the release of new cultivars.

The process at Iowa State University (ISU) will be outlined as one example. Germplasm developed by breeders at ISU is considered intellectual property of the university. Appendix D provides an example of the type of disclosure form that is sent by the breeder to the university describing the invention of a cultivar. The university passes the disclosure to the Iowa State University Research Foundation (ISURF) which becomes the owner of the germplasm and has the responsibility of marketing it. Information about the germplasm is distributed by ISURF to companies that may have an interest in licensing it for commercial use. If some company indicates an interest, the germplasm is licensed and distributed to them. A royalty may or may not be charged by ISURF depending on the germplasm involved.

Some public institutions have an internal committee that reviews the merits of the germplasm and makes a recommendation as to whether or not it should be released. For marketing the germplasm, some institutions contract with a company for that service, instead of doing it themselves.

The decision-making process in private companies generally involves more persons than described for public institutions. The persons at what is commonly referred to as the advancement meeting include the breeders, the individuals responsible for producing seed for sale, and those persons who are responsible for marketing the cultivar.

Legal protection

The two methods established by the US government for protecting germplasm as intellectual property are a patent and a plant variety certificate. A patent gives the developer the right to decide who can grow the germplasm commercially or use it for breeding. A plant variety certificate provides less protection for the developer because it has a research and farmer exemption, which makes it less desirable for the developer than a patent. There are various opinions about whether the research exemption prevents someone from using the germplasm for breeding purposes and has never been tested by the courts. Although the research exemption is not clearly defined, it is very unwise to use any germplasm for breeding without the written permission of the developer, as discussed in “Sources of Parental Germplasm” in Plant Breeding Methods (Fehr & Suza, 2024). The farmer exemption for plant variety protection was defined by US Supreme Court in a case involving sale of soybean varieties by a company that was not the developer. The court ruled that farmer’s were limited to producing and selling only the amount of seed required to plant their own farmer. For example, if they needed 200 units to plant their farm, only those units of the 200 they did not use for planting could be sold to some other farmer.

It is time consuming and expensive to apply for either a patent or a plant variety certificate and enforcement of the rights provided by each is done by the developer of the germplasm. For those reasons, some developers choose not to use either one. Instead, they have license agreements with companies who produce or market the seed. Those agreements restrict who can produce and sell seed or use the germplasm for breeding.

Branding

In the United States, it is possible to license a cultivar to multiple companies, each of which can give it their own brand name. This same possibility does not exist in other countries, such as Canada, where a cultivar can only be sold by a single name.

There some breeding companies who make extensive use of branding for marketing their cultivars. Although a cultivar can legally have only one cultivar name in the United States, it can be given an unlimited number of brand names. The one restriction is that the buyer must be notified through labeling that it is a brand by using a term such as “Brand XYZ – Variety not stated”.

The reason for the popularity of branding is that each company that sells seed of a cultivar can give it a unique designation. The disadvantage for the buyer is that they do not know if the seed from one company may be identical genetically to that of another company. The buyer who wants to plant several different cultivars could end up buying the same one from different companies under different brand names.

Seed Certification

The seed certification system makes it possible for sellers of seed to use a third party to verify the genetic identity and purity of their product to the buyer. Use of the system is voluntary for any seed developer or marketer. The international organization is referred to as the Association of Official Certifying Agencies (AOSCA) http://aosca.org. In the United States, the certification unit in participating states is commonly referred to as the Crop Improvement Association. The state certification units differ in the services they provide to the seed industry. To understand the services provided by the Crop Improvement Association in a state, simply enter the state name followed by Crop Improvement Association in a search engine, such as Iowa Crop Improvement Association.

One common responsibility of all certifying agencies is to verify the genetic identity and purity of seed through appropriate field and seed inspections. The three classes of certified seed in most states are Foundation, Registered, and Certified. Breeder seed is used to produce the Foundation class. If seed meets the standards for the Foundation class, a white tag can be sewn on the bag of seed. Foundation seed is used to produce the Registered class that is identified by a purple tag, or the Certified class that is identified by a blue tag. The Registered class also can be used to produce the Certified class in some states.

The standards that must be met for certification and the traits that are inspected vary among crops. To understand these standards for any crop, enter the name of the crop followed by Seed Certification Standards in a search engine.

The advantage of seed certification for the buyer is the assurance of knowing that the identity of the cultivar being purchased has been verified by a third party. Companies that do not use the certification system assume that the consumer trusts them to have an internal system to assure that the cultivar name or brand identified with the seed is correct.

There are no activities for this chapter.

References

Fehr, W. R. (ed). 1987. Principles of Cultivar Development. Vol 1. Theory and Technique. McGraw-Hill, Inc., New York.

Fehr, W.R. & Suza, W.P. 2024. Plant Breeding Methods. ISU Digital Press, Ames, IA. https://doi.org/10.31274/isudp.2024.159.