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http://www.kansas.com/2009/11/13/1053129/two-kansas-farmers-sued-ov...

Two Kansas farmers sued over uncertified wheat seed

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BY RICK PLUMLEE

The Wichita Eagle

Two Kansas farmers have been sued over unauthorized use of a proprietary wheat variety developed by Kansas State University researchers.

The suit was filed last Friday in U.S. District Court in Wichita against James Rossillon of Yates Center and his son, Eric Rossillon of Gridley.

The Kansas Wheat Alliance and KSU Research Foundation took legal action against the Rossillons for allegedly buying uncertified wheat from a grower or growers, then planting the wheat for reproductive purposes without authorization and in violation of federal law.

The Rossillons used the Fuller wheat variety, a certified seed that is registered and covered by the federal Plant Variety Protection Act until 2028.

After a seed is developed and registered, only authorized dealers may sell it, said Mark Henry, a Fayetteville, Ark., attorney who represents the plaintiffs. The protection act also allows only authorized seed companies to use the seed for reproduction, Henry said.

The suit alleges that instead of taking the grain to an elevator to be processed for food, the Rossillons sold it to a buyer for seed. Henry said the Rossillons sold 1,200 bushels of uncertified seed this summer to an undercover investigator from Henry's law firm for $10,800 — or $9 a bushel.

Certified wheat seed costs $12 to $14 a bushel.

Buying and selling uncertified seed also prevents K-State's agronomy department and the Kansas Wheat Alliance from receiving a royalty .

One of the responsibilities of the KWA, a nonprofit organization established in 2007 by wheat producers, researchers and seed marketers, is to serve as an enforcement arm for K-State's certified seeds. Part of that includes collecting the royalties.

Neither of the Rossillons could be reached Thursday for comment.

The suit doesn't seek a specific monetary amount in damages from the Rossillons. But Henry said more than just the Rossillons are involved in the case, which is why the suit also names "John Does 1-50" as defendants.

"This is just one transaction," Henry said. "Others are involved upstream and downstream from the Rossillons. ...

"We feel they sold it to quite a few others based on the size of their bins."

One reason for protecting the seed is so royalties will go back to K-State to fund further wheat research. That has become a critical issue for K-State researchers in the wake of recent cuts to state funding, Henry said.

Because this is the first year for K-State's royalty program for wheat seeds, KSU Research Foundation vice president Marcia Molina said she's not sure how much will be collected.

Sixty percent of the royalty goes to support K-State wheat research, and the rest helps fund the KWA, she said.

The royalty amount ranges from a half-cent to 1 1/2 cents per pound of seed. The royalty for Fuller is 1 cent, or 60 cents a bushel.

Using the courts to collect the royalties is a last resort, Molina said.

"Our first goal is to just educate people so they stop using and selling uncertified seed," she said.

Not all are getting the message. Molina said one incident was a transaction that involved 80,000 bushels of uncertified seed.

"We're not talking about someone who just gave some seed to a neighbor," she said.

Molina said this year there are eight enforcement actions involving K-State's certified seeds in Kansas, Texas and Oklahoma.

Last spring, a lawsuit against a Stockton farm family resulted in a $150,000 settlement. KWA received $100,00, and $50,000 went to WestBred Seed, a Montana seed developer, Henry said.

He said he's worked 85 incidents this year in 11 states. Of the three lawsuits he's filed in Kansas in 2009, he said two were initiated by the KWA.

"This is a significant problem," Henry said.

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I would stop the limitation of seed and its uses. The thing is with a food limitation such actions can not be allowed. We can't afford to sue people if they uses seed. The big pictures is that we need food. What would have to go down is a modification on how we do research. Research into food would be a global profitless venture in which all information on the subject would be open to anyone and everyone.

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