48 



The only thing that should be done is to clarify the language of 

 the farmers' exemption so that farmers will not have to suffer 

 what my husband and I have suffered. In my written statement I 

 will submit for the record, I suggest language that does clear up 

 these ambiguities while protecting the rights of certain farmers to 

 sell a certain amount of their harvest as seed to other farmers. 



Thank you for listening. I would be pleased to respond to any 

 questions you have. 



Senator Kerrey. Thank you, Ms. Winterboer. Your full state- 

 ment will be made a part of the record. 



Ms. Winterboer. Thank you. 



[The prepared statement of Ms. Winterboer follows:] 



Prepared Statement of Becky Winterboer, Farmer, Milford, IA 



Mr. Chairman and members of the subcommittee: my name is Becky Winterboer 

 and my husband, Denny, and I have been farmers in Clay County, Iowa for nearly 

 two decades. 



My experience under the Plant Variety Protection Act is real, personal, and pain- 

 ful and I am here today to tell you why it is so important to keep the farmers' ex- 

 emption in the act to allow certain farmers to save and sell seed. 



My husband and I own a small family farm and for years neighboring farmers 

 would deliver to us a portion of their crops for cleaning at our farm. We set up a 

 small seed cleaning facility and for a charge of $1 per bushel we would clean our 

 neighbors' seed, store it, and then return it to the neighbor who would plant it the 

 next season. 



Some of our neighbors asked us if we could provide them with cleaned seed from 

 our harvest. This would save everybody a lot of time and trouble if we simply 

 cleaned our own seed and sold it to these same farmers. In this manner, we and 

 they saved the trouble and expense of delivering the seed back and forth. 



Nevertheless, before doing this we checked with the State authorities. We were 

 told that the PVPA did not prohibit seed sales to other farmers. We were assured 

 that the farmers' exemption under the PVPA permitted farmers like us to sell seed 

 to other farmers, so long as we did not derive more than 50 percent of our income 

 from these sales. 



In 1989 and 1990, we cleaned the seed we harvested and sold it to farmers who 

 previously had delivered their seed to us for cleaning. The price we charged was 

 essentially the market price of the crop plus cleaning and storage charges. The 

 farmers who bought our cleaned seed saved the cost of transporting their seed back 

 and forth. 



Then, in 1991 we were sued by the Asgrow Company, a subsidiary of the giant 

 Upjohn Company. Asgrow sent one of their agents specifically to buy seed from us 

 to set us up for litigation that would test the strength of the farmers' exemption in 

 the PVPA. What happened afterwards was a nightmare. After a brief hearing in 

 the Federal District Court, the judge ruled that our sales violated the PVPA. Our 

 attorneys advised us that the judge was flat wrong. We appealed to the Federal Cir- 

 cuit Court here in Washington, DC, where a unanimous court stated that Denny 

 and I did not violate the PVPA in making these sales. The Federal Circuit's ruling 

 interpreted the intent of Congress and helped to clarify and preserve the right of 

 certain farmers to save and sell a portion of their harvest as seed. In the meantime, 

 Asgrow Seed Company was issuing press releases saying that we had violated the 

 law, and implying that they would continue to sue farmers who either sold or 

 bought brownbag seed. 



Asgrow has now asked the United States Supreme Court to review this case. I 

 can't really explain the emotional and financial costs we suffered to defend this suit. 

 I guess we could have settled early-on— just as Asgrow had hoped we would. Indeed, 

 we later came across an article by Asgrow's attorneys urging other seed companies 

 to sue farmers who were "brown baggers," knowing that most family farmerspan't 

 afford litigation. Asgrow said the suits would cause these farmers "headaches" and 

 cause them to settle right away. But we knew we were in the right; we just could 

 not let the seed companies get away with these tactics. 



There are a number of things I learned during this horrible experience that I be- 

 lieve this subcommittee should consider: 



