K-State cracks down on illegal wheat seed sales developed by university

By DUANE SCHRAG

Salina Journal

Kansas taxpayers might have paid for the research that led to the most popular wheat varieties planted in the state, but it is Kansas State University that controls the rights to the seed, and now the university is getting serious about enforcing those rights.

With wheat varieties developed by K-State making up as much as 80 percent of the planted crop in the state, the university has started suing farmers who hold back seed wheat and sell it to friends and neighbors for planting.

"With all the cutbacks in public funds that are available to K-State, the only way that we are going to be able to continue to develop these new varieties is going to be by taking advantage of protecting the intellectual property rights involved," said Ron Trewyn, vice president for research at K-State and president of the Kansas State University Research Foundation.

Records provided by the university show that state-funded development of wheat varieties at K-State has nearly doubled since 1998, from $2.1 million to $3.7 million in fiscal 2008.

In addition, it receives about $800,000 a year from the Kansas Wheat Commission, and that figure is about to go up sharply: a 50 percent increase in the check-off rate went into effect this year and should boost the amount collected from wheat farmers every year from roughly $3 million to $4.5 million.

In recent years, only a portion of the check-off money -- about 21 cents a dollar -- has gone to K-State for wheat variety development. A larger chunk goes to marketing. Some has even gone to fight cancer: $36,300 in 2004 for breast cancer research and $48,300 the following year for prostate cancer research, both at Wichita State University.

Time to get tough

But K-State officials say that while the university has increased its spending on wheat research, overall state funding has not kept up. Thus, the university was spending about 8 percent of its state funding on wheat research 10 years ago, but now is spending about 11 percent.

In addition, they argue that the increases haven't kept pace with inflation associated with research.

So the university decided to enforce the intellectual property rights it acquired for seed it developed.

In late 2008, the Research Foundation sued an Oklahoma farmer for illegally selling seed wheat developed by K-State; the farmer agreed to pay $50,000 in damages. This past spring, a lawsuit against a Stockton farm family resulted in a $150,000 settlement.

"I wish we didn't have to do it," said Fred Cholick, dean of the College of Agriculture. "I wish the public dollar would support it, but it doesn't. It would be impossible for us to have viable plant breeding programs and viable extension research programs solely on the public dollars."

Marcia Molina, vice president of the Kansas State University Research Foundation, said the decision was supported by farmers "who were tired of their neighbors cheating the system rather than supporting it."

Protection for 20 years

While U.S. patents can be obtained for plants, the more common approach by plant developers is to obtain a Plant Variety Protection certificate, which offers many patent-like features for 20 years. Federal records show that PVP certificates were issued to Kansas State University or the KSU Research Foundation on 24 varieties of wheat. Ten of those certificates have since expired (three in 2008 and four in 2007), which puts the seed into the public domain.

KSU Research Foundation controls the certificates on five wheat varieties: Jagger (January 1996), Overley (July 2004), Danby and RonL (May 2007), and Fuller (July 2008).

According to litigation filed in federal court, the PVP certificate originally was issued to the Kansas Agricultural Experiment Station and is in force until January 2016. In July 2007, K-State assigned its rights to Jagger to the KSU Research Foundation, and in March 2008 the foundation granted the recently formed Kansas Wheat Alliance an exclusive license to make and sell the Jagger variety.

Molina said the Wheat Alliance was formed to commercialize KSU wheat varieties. Its founding members are the Kansas Association of Wheat Growers, the Kansas Crop Improvement Association, the Kansas Seed Industry Association, the Kansas Wheat Commission, KSU Research and Extension and the KSU Research Foundation.

K-State and the research foundation solicited comment from those organizations before forming the Kansas Wheat Alliance.

"In all these meetings, the importance of PVP enforcement by the Kansas Wheat Alliance was brought up," Molina said. "I expect these boards reported back to their members regarding these discussions."

Stealing from the system

Molina said that producers often feel they own new wheat varieties developed by K-State because they pay ("maybe," she said) the wheat check-off that goes to the Kansas Wheat Commission. That check-off, which has been 1 cent a bushel for more than 10 years, went up to 1.5 cents this year. The money is collected on the initial sale of harvested wheat.

While participation is described as voluntary -- farmers can request a refund later in the year -- opting out isn't encouraged.

"We don't like to talk about it a lot," said Daryl Strouts, executive director of the Kansas Wheat Alliance. Refunds average 9 percent.

In the past 10 years, the wheat check-off (after refunds) netted $32.5 million. K-State reports receiving $6.9 million of that for wheat research, plus another $1.7 million for international marketing (K-State counts the latter as research; the wheat commission, in its audited financial statements, does not classify that contribution as research).

Molina notes that state and federal money underwrites a significant part of K-State's wheat research.

"So really, it is all the citizens of Kansas (and the U.S. as a whole) who could be said to have paid for and truly 'own' the new wheat varieties," Molina said. "Thus these producers (who sold as seed protected varieties developed by K-State) were stealing from the system which supports wheat research, willfully breaking the federal and state law, and profiting egregiously from their neighbors. It is difficult for me to see how one could argue that the Kansas Wheat Alliance should do anything but try to put an end to this type of activity."

n Reporter Duane Schrag can be reached at 822-1422 or by e-mail at dschrag@salina.com.

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Farmer's granddaughter says....
The Kansas Wheat Alliance Should be disbanded for lying, cheating and stealing. They seem to believe that they are now gods because they can "make" a seed, therefore they own the seed. They didn't create the ancestors of the seed they "made". Therefore the seed was already here and no matter how much tweaking they did to it, they didn't created it from scratch out of dust. If I took one of their children and tweaked his DNA, gave him a nose job to look prettier and dyed his hair, would I then have child I could claim was mine? I made him unique, I tweaked his DNA and now his children will have brown eyes, didn't I? Science can manipulate what is already here, it doesn't create anything out of nothing. And that seed was in the public domain already. Don't claim it's unique, it's not, it originated from plain old wheat seed. I think all those college educated brains have been overworked and they are suffering from delusions of godhood. In bad times like this it's inexcusable to put more unnecessary pressure on farmer. Oh, and it's not about the college losing money for research, that's a crock. It's about the Association getting fat money off the farmers. If I were one of the farmers, I'd plant anything but wheat.
8/9/2009

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