By Dr. Jochum Wiersma, U of M Small Grains Specialist

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Prairie Grains is the official publication of
the Minnesota
Association of
Wheat Growers,
North Dakota Grain Growers Association,
South Dakota Wheat, Inc., and the Minnesota Barley Growers Association.

The species of wheat (and its close cousin, durum) is self-pollinating. This means that each plant pollinates and subsequently fertilizes itself. The egg cell and the pollen, thus, come from the same flower. The consequence of this process is:

• Wheat is ‘true breeding’ or homozygous. In other words, the offspring will have exactly the same genetic makeup as the parent from which the seed was harvested.

• If a crop breeder wants to create new genetic combinations, he or she will have to manually cross two different plants by hand and harvest that seed.

• Once a cross has been made, it takes about seven generations (crops) to approach 100% homozygosity (see table 1), where the seed has exactly the same genetic makeup as the parent seed.

• A variety is a mixture of a few different genotypes or genetic strains. Each genotype itself is true breeding and was selected from a group of plants that looked very much alike (identical).

Table 1. Transferring the genetic makeup of a wheat plant. This table illustrates the process of crossbreeding plants, and the genetic make-up of the plants during the process from one generation to the next.

¹Homozygosity: the percentage of traits that make up a plant which are true-breeding from one generation to the next generation.
²Heterogeneity within group: the percentage of traits which are different between progeny derived from the same plant.
³Heterogeneity between groups: the percentage of traits which are different between progeny derived from different plants.

Since wheat as a species is true-breeding, you can safely seed and replant it, knowing that the variety will not change from one generation to the next: Its genetics do not change. A comment often heard is that a variety has gotten "old and worn-out" and may have even lost some of its resistance or yield potential. In genetic terms, however, this is not true. The resistance did not disappear. The genes that make up the resistance are still there. Often a change in the pathogen causes loss of functionality of the resistance: The resistance is still there, and is still being expressed, but the resistance is no longer effective against the new strains of the disease. Unlike mammalian life forms with complex immune systems, the plant can’t adjust to the new pathogen and becomes susceptible.

Protecting The Investment
When a breeder, public or private, develops a new variety through crossing and selection, he or she wants to be able to protect that investment in time and money. After all, it takes approximately 10 years for a new variety to reach the farm, when all the steps to crop breeding and seed increases are considered.

Some public institutions do not protect varieties, because they are developed by government funding and producer checkoff dollars. The downside is that the institution has no way to control the flow of seed to other states or countries (like Canada). Other companies subsequently could profit from the fruits of labor of the public breeder without the public institution having any way to recoup any costs.

If a species is suitable to readily produce hybrids (a.k.a., the F1 generation of a cross between two true-breeding parents), the breeder has a natural way to protect the property. Planting the F1 hybrid seed will produce a crop that is completely uniform (the cross was between two true breeding parents) and genetically at maximum level of heterozygosity. Replanting seed from a hybrid will result in a crop the next year that will not be uniform: a trait will deviate if it comes from two different parents. For example, a short F1 combined with a tall F1 will result in an F2 generation that will result in various plant heights from short to tall.

The breeder needs a different way to protect the varietal investment if a species doesn’t lend itself to produce hybrids cost-effectively. The Plant Variety Protection Act provides this legal protection. The PVPA provides the breeder with a patent-like right that protects the reproduction of varieties.

Varieties protected under the PVPA can be sold or advertised for seeding purposes only by the owner of the protection certificate or with the owner’s permission. The owner of the certificate may bring civil action against persons infringing on his or her rights. The damages awarded by a court must at least compensate the certificate owner for the infringement. Awards could also include attorney fees and up to triple damages where willful infringement is found. The term of the protection expires 18 years after the certificate is issued for varieties filed before April 4, 1994, and 20 years for those varieties covered under the amended act.

Types of Protection
Two options for plant variety protection are available to the developer of a variety. The first option enables the developer and certificate holder to sell either certified or uncertified seed of the variety. Certificate holders choosing this option must resort to civil action if their rights are infringed upon within the period of protection.

These certificate holders are not covered under Title V of the Federal Seed Act and violators cannot be prosecuted by the federal or state government. In a manner similar to patent rights, certificate holders can authorize the use of their varieties in any way they wish on a royalty or free basis.

The second option for protecting a variety is the "certification only" option, that utilizes the provisions of Title V of the Federal Seed Act. Violators of these laws may be prosecuted by the federal or state government. A variety protected in this manner may be sold only as a class of certified seed. Sales of uncertified seed by variety name are in violation of both the certificate owner’s rights and the federal and state seed laws.

Most state institutions and some private companies have chosen to protect their varieties under this option. Violations of any provision, rule or regulation of the Federal Seed Act is a misdemeanor punishable by a fine not to exceed $2,000. Farmers who wish to produce seed of protected varieties for sale must obtain authorization from the owner of the certificate.

The PVPA allowed the U.S. to be a signatory in the International Plant Breeder’s Rights Treaty (UPOV). Each member country provides largely the same protection, but each have their laws worked out slightly different. In the U.S., the PVPA is probably not as strong as in comparison to other UPOV members (like The Netherlands). The biggest ‘shortcomings’ are:

Burden of proof on breeder – In the U.S., the breeder has to prove whether a farmer, seed conditioner or a seed salesman broke the law. This is often very difficult and costly. In contrast, in The Netherlands, the farmer or seed conditioner has to open the books each year to the Agricultural Inspection Service to prove the source and destination of any produced/processed seed.

Limited repercussions – Even if a farmer has already violated PVPA laws, the financial repercussions are rather limited under federal stature with an upper limit of $2,000 per incident.

Needless to say, ‘brown bagging’ (processing and selling PVPA protected varieties without permission) is especially a large problem in wheat, barley and soybeans.

In recent years, some companies have opted not to seek protection under the PVPA, but rather use the utility patent law. Especially ‘genetically modified organisms’ (varieties with traits as a result of biotechnology) like Roundup Ready and Bt crops have been given this type of protection. In many ways, this legal protection is much stronger than PVPA can provide.

The problem with the utility patent, however, is that other breeders can generally not use the germplasm/variety in their crosses without permission of the utility holder. This is something that is possible under the PVPA. This free exchange of germplasm is a crucial factor for the continued improvement of crops.

The ultimate protection may not be laws, but genetics — "Terminator" technology, as it has been dubbed in the press. Seed from a variety that carries this trait would be sterile, forcing the farmer to buy new seed from the breeder each year. The "terminator" technology is at this point a concept and has not been implemented in any crop species.

Enforcement of the PVPA is not without problems, and the refresh rate for seed (% of seed that is bought and thus resulting in royalties for the breeder/certificate holder) in certain commodities is rather low. Thus, companies look at the "terminator" technology as a way to improve the profitability of breeding programs in self-pollinating species. The profitability is notoriously low, which is why there are very few breeding companies active in self-pollinating species, such as wheat.

Crop breeding is a science. It is also a business. Therein lies the conflict and challenge for varietal development in the next century. Who will be doing the breeding in ten years: Public institutions supported with tax dollars and checkoff funds (basically with a cost recovery approach) or large private companies (with a lot of pressure from stockholders to achieve large returns on investments)? It is very possible that public and private development may coexist. Ultimately, it will be the market–end users and crop producers–who will determine the approach.