OSU-OARDC Plant Germplasm Release Guidelines and Practices

Special Circular 178-01

Guidelines for Release

The intention of the release policy is to ensure a supply of high-quality germplasm (seed or clonally produced) to Ohio germplasm producers, commodity growers, and processors through a system of peer evaluation, certification, identity and purity verification, and improved end-use traits in OSU-OARDC germplasm. Plant Variety Protection (PVP) may be sought for public (non-exclusive) releases. Requests for exclusive releases are evaluated on a case-by-case basis.

1. Grain Crops
   1. Public varieties of small grains and soybeans will be released and distributed to seed producers in Ohio and other states through Ohio Foundation Seeds (OFS). Seed producers may market OSU lines as a certified variety under the variety name or as a brand with the variety name not stated. Ownership of varieties remains with OSU-OARDC.
   2. OSU-OARDC lines may be covered by the Plant Variety Protection Act, Title V. Seed sold as a public variety must be certified, and branded seed may carry a green tag of quality assurance. Certified seed and green tags will have the following (or similar) statement on the label:

      "IT IS PROHIBITED TO USE OR SELL GRAIN, PRODUCED FROM THIS SEED, AS SEED."

   3. Seed will be sold in foundation, registered, and certified seed classes. Seed producers will be required to sign a licensing agreement prior to seed sale from OFS. This restriction also applies to foundation seed sales outside Ohio.
   4. A royalty will be assessed on all foundation and certified seed sold. OSIA will serve as the agency for royalty collection. The royalty rate will be set by the OSU Office of Technology Licensing (OSU-OTL) for each crop variety release. Partitioning of collected royalties between OSU-OTL and OSIA will be negotiated annually with an effective date of July 1 through June 30 of each year. Royalties retained by OSIA will be sufficient to cover all reasonable administration and collection costs and all promotional activities of OSU certified varieties.
   5. Seed distribution by foundation or certification agencies outside of Ohio will be as a class of certified seed only. Seed producers in other states may market Ohio lines as private brands through a licensing agreement with OFS. Distribution of royalties collected on out-of-state sales of registered and certified seed is as follows: 40% of the royalties remain with the collecting state, and 60% will be forwarded to OSIA. In cases where seed is distributed directly to growers in other states by contract with OFS, all royalties will be returned to OSIA. Partitioning of out-of-state collected royalties will be covered by an annual agreement between OSIA and OSU. For branded varieties or varieties released exclusively through the Agricultural Genetic Research Assocation (AGRA), 60% of the royalties collected will be allocated to OSU and 40% to AGRA.
   6. Sister lines or other lines not released to OSIA may be offered to AGRA with the right of first refusal as per existing agreement.
   7. OARDC may make released varieties available to other breeders for any research purposes permitted by the Plant Variety Protection Act. Recipients of such seed must sign a suitable Materials Transfer Agreement (MTA).
2. Seed Propagated Vegetable and Ornamental Crops

   Open-pollinated varieties will be offered on a non-exclusive basis. Exclusive licenses for hybrid varieties will be provided on a case-by-case basis for domestic and international markets. Requests for Proposals for exclusive licenses will be announced periodically upon approval for release of individual hybrids. Guidelines for exclusive license proposals and criteria for evaluating such proposals are addressed under a separate heading of this document (see page 14). All licenses will include a license issue fee and a royalty on sales.

3. Specialty Varieties

   Specialty varieties are varieties that may require a special effort by the producer or the processor in order to exploit their unique characteristics. Release of these varieties is governed by the same principles described for other varieties, and there are no special practices associated with specialty varieties. Public release will be considered first, but release as branded varieties, including exclusive release to a single producer or a group of producers, is an option. Because additional time may be needed to identify a potential licensee and to test the product, OSU-OARDC researchers may provide samples of seed or other products to interested parties prior to release, under an MTA. Royalties on the value-added products themselves (beyond the seed, per se) may be considered, particularly in cases where seed sales will be minimal.

4. Non-Exclusive Contractual Release

   New cultivar germplasm not deemed suitable for public release and not accepted by AGRA may be offered to OSIA members on a non-exclusive, contract basis. This option is most likely to occur when germplasm does not have wide agronomic adaptability in the state or has other characteristics that might limit variety acceptance.

5. Exclusive Contractual Release

   Exclusive licenses to certain germplasm may be entered into with companies in a number of situations. Those situations include (1) a company plans to sell in a certain international marketplace, (2) a variety is developed under contract with a third party, or (3) a variety is classified as a specialty variety and may require a special effort by the licensee to exploit the unique characteristics.

   In all of the previous situations, the following apply: (1) the source of foundation seed will be OFS; (2) the production of registered seed will be in Ohio; licensee may also contract for the production of certified seed with U.S. growers and, preferably, Ohio growers; and (3) licensee will agree that any contracting with producers will include a buy-back of all production whether seed meets certification standards or not, and licensee will ensure that any seed not meeting those standards will not be sold as seed but will be disposed of through commercial channels so that the identity is lost. Licenses will be negotiated through the OSU-OTL.

6. Other Releases of OSU-OARDC Germplasm

   The factors listed here will be considered when determining other releases of germplasm.

   1. Protection of OSU-OARDC germplasm.
   2. Protection of intellectual property and research opportunities.
   3. Role of a public institution to ensure equitable distribution of germplasm to stakeholders.

   After the decision has been made to release other germplasm, the guidelines listed here are enacted.

   1. Elite germplasm must be released through the CVRDC irrespective of the recipient or the use. (This would include lines to be used as varieties directly.)
   2. Germplasm with/or novel traits and genes should be released through the CVRDC and should only be made available with the appropriate MTA.
   3. Lines to be used as parents of hybrids must be released with an MTA, but it is not necessary for all potential parents to be released through the CVRDC if the breeder has determined that the line does not fit (1) or (2) stated previously.

   Raw germplasm for use in crossing or raw segregating populations to be used for derivation of lines could be released without CVRDC approval. Such a release should not require an MTA. If the population or raw germplasm contains identifiable novel traits or genes or commercial value, it is in the breeder's best interest to release these varieties or populations as "germplasm" under (2) stated previously.

7. Assignment of Rights to Discarded Germplasm to Breeders

   The University's Policy on Patents and Copyrights allows for the dedication of the University's rights in an item to the public. The breeder's discarding of inferior or excess germplasm may put the seed in the public domain but is clearly not a dedication by the University of its rights in the lines to the public. On the other hand, the University's Policy has a requirement to permit the former breeder to request and be granted rights to such germplasm. Thus, the former breeder should make a formal request for discarded germplasm to the Director of OARDC who is obligated to honor reasonable requests. The OARDC reserves the right to charge a fee to recover costs of staff time and materials needed to fill such requests.

   Any release of elite germplasm or finished lines to former OARDC breeders, staff, or students may occur only if the current OARDC breeder, chair of the CVRDC, and the Director of OARDC determine that it is of no further value to the OARDC program. Populations or raw germplasm, initiated by the former breeder, should be made available to the former breeder without restriction to protect the breeder's intellectual property and research opportunities.

   When a decision to assign rights to discarded lines, germplasm, or populations has been reached, the guidelines listed under Section VI shall be enacted.

   When the current breeder has evaluated germplasm left in the program by a former breeder, the current breeder has partial ownership rights in the germplasm and therefore has a voice in determining the appropriate disposition of such material that is discontinued. The current breeder may, for reasons of convenience, discard the material that is clearly of no value without offering it to the former breeder.