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what do you think about patented trees/plants?

Posted by cousinfloyd NC 7 (My Page) on
Sun, Feb 12, 12 at 23:04

I'm wondering what other small scale fruit growers think of patent protections for plant/fruit tree varieties? I know basically what the law is, so I'm not asking about the facts. What I'd like to know are your thoughts/opinions. For instance, apart from the fact that it's illegal, how wrong would propagating a patented variety for your own use feel to you (if at all)? Say if you had some sort of special immunity from patent laws, would you have any desire to respect them anyways? If you believe in patenting plants, why do you think it's justified? Are there any justifications beyond pragmatic ones? In other words, is it an ends justifies the means thing, or is there a principle that doesn't depend on any vision of/argument for the best "ends"? If you discovered a valuable variety (following however much experimentation/work) and had the means of patenting it, how would you feel about staking ownership to a variety like that?


Follow-Up Postings:

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RE: what do you think about patented trees/plants?

I think its only fair if you spend a lot of time, effort and money developing a variety, you should have some way of protecting yourself. I do think that for personal use, you should be able to make copies (as long as they stay in your possession) in case something happens to the original.

What I would like to know is:
If you have 2 patented varieties and breed them together and grow out that seed...is that fruit yours or is it patented?


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RE: what do you think about patented trees/plants?

  • Posted by fruitnut Z7_4500ft elev SW TX (My Page) on
    Sun, Feb 12, 12 at 23:39

Frank:

I think that new fruit would be yours to patent if you like. And I agree that fruit patents should be respected. It takes a great deal of time and money to breed new superior fruits.

My one exception would be say you buy several pluot. I think that you should be able to graft them onto each other for pollination purposes as long as you end up with no more trees than you started with.


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RE: what do you think about patented trees/plants?

I would say that if I could still go out and buy the cultivar (and we aren't talking about survival or true necessity) I woul feel like a major tool if I cloned a patented tree.

Now if the tree's patent was still valid, but no trees are for sale (for various reasons) and purchasing would be impossible, I might not feel as bad then.

I'm not fully sure about modification, but in this case I think grafting multiple trees together (as long as you were only grafting non patented onto patented) might be ok, otherwise it might fall under asexual reproduction.


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RE: what do you think about patented trees/plants?

We wouldn't have many of the varieties we do if it wasn't for patent laws and royalties. U of Minnesota reaped $8 million from the Honeycrisp patent; however, it took 30 years of breeding and testing to bring it to market, and think of all the flops that didn't make it.

Now the royalties are usually $1 per tree, so it is petty theft, but theft none the less; I've always wondered about establishing a "guilt fund" that home growers could contribute to in order to appease their conscience that would be distributed among patent holders.


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RE: what do you think about patented trees/plants?

When I think of plant patents I think of Neal Peterson, an individual person, and his long, hard, and personally expensive route to provide us with some truly worthy pawpaws. I would not take well-deserved money out of his pocket. For myself and friends where I graft, and others when I send scions, I use different good ones such as "Mango." (I do wish he had some way for an individual to pay a reasonable royalty fee though for an occasional grafting.)


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RE: what do you think about patented trees/plants?

  • Posted by olpea zone 6 KS (My Page) on
    Mon, Feb 13, 12 at 10:03

Although I've obeyed them, I have mixed feelings about plant patent laws. On the one hand, someone/entity should be rewarded financially for all the research that goes into producing a patentable product. However, a lot of these patented trees are simply someone going out in their orchard and discovering a "sport" and patenting it. They really didn't have any work or expense (other than the patenting) that went into it. They were just lucky. Similarly, one can stumble across a plant in nature and if it's new, different and "undiscovered", he/she can patent it. I don't see the logic in that.

Even though I respect plant patents (i.e. pay the fees and don't make copies with patented material) I think patents have gone way too far. It used to be that patent protection didn't extend to anyone using it for their own purpose (in other words they could make "copies" of the tree or save back seed of patented material, if it was for their own use.) Now probably because of lobbying, patent protection is so ridiculous that a back yard grower can't even legally make a copy of a patented tree in his/her own yard. To me, it's akin to the copyright laws (which I also think have gone overboard). They are so restrictive (virtually all the music videos on youtube are illegal) that everyone just ignores them, forcing us all to become law breakers. It used to be a copyright lasted 50 years (which is plenty long IMO) but not long ago lawmakers were lobbied into stretching it to 75 years. Maybe I'm too much of a socialist when it comes to intellectual property, but I think 50 years is adequate time for one to reap the financial rewards for a clever song or book before it becomes public domain.

Similarly, plant patents have been granted more power and scope through the years. Even fairly recently, patents used to last 17 years from time of filing, now it's 20 years from time of application (the application generally doesn't take 3 years).

Even worse are these new "club" varieties. Basically, since there are never released (or sold) and more or less "rented" the developer can circumvent the patent laws and collect rent/royalty forever.

Patent laws were developed for this very reason (to allow someone special protect to profit from intellectual property in exchange for the property to become public domain after a reasonable amount of time). Club variety developers should be forced to live within the constraints of that protection, not be allowed to do an 'end run' around it.


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RE: what do you think about patented trees/plants?

Is there a website to search if your variety is patented? i'd like to send the $1 or whatever royalty fee is to the owner of the patent if i ever got a scion from patented variety.
Think someone told me there is a website to search...

Is there any laws ever against trading scions? Like the owner of patent doesnt allow trading of scions at all, even if you want to provide royalty/patent fee to the owner?

-Ari


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RE: what do you think about patented trees?

  • Posted by olpea zone 6 KS (My Page) on
    Mon, Feb 13, 12 at 10:28

Ari,

You can look up the patent at Freepatentsonline.com or the U.S patent office:
http://patft.uspto.gov/netahtml/PTO/srchnum.htm.

If I ever decide to make copies of a patented tree, I'll look online to see what the nurseries are charging for patent fees, and send that amount of money directly to the owner of the patent (or whoever it's assigned to - the patent will name an assignee if there is one).

Patent fees are rarely just a dollar anymore. Patent fees seem to be subject to inflation like everything else. The new NJF flat peach varieties have a whopping $4.50 patent fee.


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RE: what do you think about patented trees/plants?

Hold on a second batman...

We can trade patented scion wood? if we pay a royalty? I thought that was a no no? I thought you could only buy from a grower that has the right to sell that variety?

Lets just start trading scion and we'll label everything "peach" "plum" "pluot"... Really, $4.50 is crazy. Think if you are an orchard and want to put in 500 trees... ouchy! especially if they all get canker and every peach succumbs to brown rot :)


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RE: what do you think about patented trees/plants?

A lot of the patents on fruit trees go to Universities and let's face it, they need the money. UMinn wouldn't be able to keep breeding trees if they couldn't make money off them. That new plum was from UW River Falls which does not have any extra money to throw around.

I do agree that copyright protections can get very silly and I try to follow them if they make sense. But if it is something that has never been released and isn't available any other way, then yeah, I'll download it.


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RE: what do you think about patented trees/plants?

I am a small backyard grower. So I don't need any large number of trees. Therefore, I am more than happy to pay the money to get an improved variety. Don't at all mind supporting the people who make it all possible to begin with. I'm just glad to have an increased number of workable prospects in which to choose from.

I ordered a Harrow Sweet Pear recently. So most likely there is a royalty fee of some sort included. It is on OHxF333 rootstock, so possibly another one for that(?). The cost of the tree = $25.99. Not a bad price for a tree that will hopefully produce for a good many years to come. There again, am quite happy to have the option for that root stock as well. Made available by the efforts of others somewhere along the line.

It is the shipping and handling that perturbs me, $24.66 for that alone. Nearly identical to the price of the tree itself! That is where the crime lies as far as I am concerned.

Anyway, I will now have my preferred desired pear/rootstock combo in the ground soon. With the Harrow Sweet on hand, I can now utilize it to include additional varieties grafted on it in the years to come of non-protected types. I feel satisfied with that situation.


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RE: what do you think about patented trees/plants?

Universities do not need the money if they don't spend way too much money on their stupid sports programms. agriculture is usely a by-product of their more important programms.Some breeders just want a name in horticulture history.More power to them. Me myself i don't mind paying a roalty if this tree is quarantied a reasonable timeframe so that i can enjoy at least a few fruits from it and it not dy the first winter.When i buy any tree i usely give it the best care i know how.In all my years of growing tree's i have encountered many tree's dying either the first year or the next.There are many,as a matter of fact i still have the metal tags that i have saved(40+ years).Gardening is my hobby and a sound return on my bought fruittree's is debateble but fun.


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RE: what do you think about patented trees/plants?

The following note is from Duck Creek Farms, a supplier of sweet potato slips that I was just considering ordering plants from. It's not trees, but I suspect is no different with regards to how the patent system works nowadays. Since Neal Peterson has been mentioned, I know I've read that he only licenses a very limited number of specific nurseries to sell pawpaws (as opposed to anyone that would pay the fee.) $2/tree might not be much, but if, in order to pay that $2 you have to pay an extra $15-25/tree plus another significant sum for shipping and handling for trees that you could otherwise graft yourself, then it seems like a racket grossly disproportionate to the patent fee. Here's the note from the sweet potato nursery:

I have received requests for the Evangeline variety. Evangeline is a patented variety from the LSU
sweetpotato research. Covington is another patented variety from NCSU.
I was basically told that I was too small of a grower and wasn�t worth their time to deal with so
wasn�t granted a license to grow and sell the slips.
I think it is a shame that our federal tax dollars that you and I pay which subsidize the
development of new varieties financially benefits only the large corporate growers. Robbing the
poor to help the rich. This is not what the Smith-Lever Act of 1914 was all about. I am a firm
believer in equal opportunity and treatment by government agencies. ��.. I�ll get off my soapbox
now�.


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RE: what do you think about patented trees/plants?

When I see "patented plants", the Streisand Effect kicks in full gear for me. Even if its a plant I wouldn't normally want, I would want to get seeds/cuttings/whatever simply because I wasn't supposed to have it.

(For those that don't know, Barbara Streisand got a burr up her butt when some magazine took pictures of her seaside mansion without asking, and she went into a huge battle to have all of the pictures removed from everywhere. It backfired in that everyone and their grandmother wanted to see the pictures, which would have gone unnoticed if she had just kept her mouth shut about them.)

I fully understand the amount of time and effort that is required to create and stabilize a new breed of anything. I really do, I'm a computer programmer by trade, so believe me, I know full well about people taking what I make for free.

That said, these are living things in the end. If you want to control the supply, I can perfectly well agree with you being the only one allowed to sell them on a large scale. Going after backyard gardeners for sharing seeds or cuttings though is going too far.

If I had a rare patented plant that one of my friends wanted, I would be happy to give them seeds or cuttings of it.


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RE: what do you think about patented trees/plants?

Like the sweet potatoes mentioned above, there is a variety of cherry tree that the only nursery licensed to sell them cannot sell to me because I'm not a commercial grower, although they can/will sell me other varieties.


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RE: what do you think about patented trees/plants?

To answer a couple questions above, while you are free to send some $$ to a patent holder if you graft a variety, that does not make your action legal - they hold all the rights unless explicitly granted in advance, and they could probably succeed in getting damages from you if so notified. Of course I expect they would not bother but in principle they could.

Re: club varieties, I am sure these will eventually sneak out and once they are out and the patent is expired they are out. The cost of security is just too much and all it takes is one fence jumper or opportunistic picker/pruner/etc in the world and the variety is out. After its out if the club guys can trace the leak to the source they can sue the orchard that leaked it, but if the patent is expired thats about all the legal recourse they have and its too late to prevent it from being grafted by everyone else.

Concerning the general philosophical issue of patents, patent laws do make economic sense in terms of allowing inventors to spend money on making new things, but unfortunately the implementation is waaaaay far from perfect. In my professional world of software development the patents process is abused to ridiculous proportions and it has arguably hampered more than helped the origin and utilization of invention. I think plant patents make relatively more sense than software patents because there is no argument over what is being patented, and I generally do try to obey the laws. That said, I sometimes make exceptions if I want to test a patented variety with a limb graft or two on a larger tree and I have no room for a completely new tree. I would love to send the royalty $$ to the patent holder to be in the clear but there is currently no process to do so. Well, I did once ask Neal Peterson when I wanted to graft another stock over to one of his varieties and he said to send him some reasonable amount and I sent him $5.

Scott


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RE: what do you think about patented trees/plants?

  • Posted by olpea zone 6 KS (My Page) on
    Mon, Feb 13, 12 at 22:39

"while you are free to send some $$ to a patent holder if you graft a variety, that does not make your action legal - they hold all the rights unless explicitly granted in advance, and they could probably succeed in getting damages from you if so notified."

I've considered this and thought that if I ever sent money to the patent holder, I'd send it anonymously in cash (with a short note explaining what the money is for). Yes the receptionist may take the money and stuff it into his/her pocket, but then they are stealing from their employer, not me.

Technically, the patent holder wouldn't have given me permission to propagate their trees, but if I've paid the same fees directly to the patent holder that I otherwise would have paid to the nursery (who would then forward those funds to the patent holder) I've not stolen from them, which to me, is the issue at hand.

Is it simply assuaging my conscience? Perhaps. But to me part of being human is trying to do the right thing, whether someone notices it or not.

"After its out if the club guys can trace the leak to the source they can sue the orchard that leaked it, but if the patent is expired thats about all the legal recourse they have and its too late to prevent it from being grafted by everyone else."

I suppose you're right. Practically speaking club varieties will probably leak out once the patents expire. It's a bit sad though, the public will have to rely on someone stealing the cultivar for it to become public.


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RE: what do you think about patented trees/plants?

I find myself agreeing with everything that's been posted here- even when the different viewpoints obviously are at odds with one another. So it goes.

One consideration I don't hear much of is this: Nobody, no institution or individual or group, ever builds from scratch. We all see a little further because we stand on the shoulders of those before us. And while we ought to reward individual genius, effort, enterprise and even some good luck (since it comes with perseverance) I am uneasy with anybody cutting out a chunk of the end results of many, many efforts and claiming it as their own. There are a whole lot of failed attempts out there that needed to be done before the lucky got lucky.

If somebody slipped me a patented whatever I'd probably use it and maybe even share it very thoughtfully, but to profit from selling it or its fruits would be too much.

Subject to change upon reflection.


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RE: what do you think about patented trees/plants?

I went to the site mentioned earlier in this thread to search patents. How does one find out when patents expire?


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RE: what do you think about patented trees/plants?

US Patent office, if I recall patents have a much shorter shelf life than copyrights and trademarks.

Going back to what others are mentioning about doing their own grafting, I think that is still considered part of unauthorized reproduction.

As for not paying (by choice or accident) the penalty is usually much stiffer than what you owe. It's not like you would actually get in trouble, but if you did they would want far more than the fee. Also, sending payment after the fact won't work as well as they did not give permission (which is the key to arrangements like this)

Thankfully, there are far fewer patent trolls in agri than in tech. They usually are more focused on farmers, such as the man who had soybeans that were immune to round up and he was sued for what natural crossings created.


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RE: what do you think about patented trees/plants?

Here is an idea,just pollinate your mango variety with a peterson bloom,isolate it,mature your fruit,save your seeds,plant the following spring,graft your new variety in the fall,give it a new name of some kind and 4 years later you have your own patented tree plus beaucoup money.If somebody ask about the parentage just tell them, in my case:I just found it in the Ozarks growing wild.


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RE: what do you think about patented trees/plants?

I may well be wrong, but I don't think seeds or pollen from patented fruit plants are covered in the patent (maybe they are in other crops where the gene is patented).

The issue with seeds might be a bit more complicated with many types of citrus if these happened to be patented because 90+% of the seedlings would be as identical as if you had grafted it.


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RE: what do you think about patented trees/plants?

Bananas-

That is my understanding. So a self pollinated patented tree is pretty pointless. Just save all the seed and plant them out and you'll have more or less similar trees.


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RE: what do you think about patented trees/plants?

  • Posted by olpea zone 6 KS (My Page) on
    Tue, Feb 14, 12 at 13:23

"I went to the site mentioned earlier in this thread to search patents. How does one find out when patents expire?"

One way to find the patent number is by googling the cultivar name and finding a nursery that sells it. Generally if it's still under patent, the nursery will show the patent number beside the name.

For example, John Boy II peach. To see the patent info., Adams county lists the patent # as 11591. Go to the U.S. patent office page I linked above and type that number in as follows: pp11591

You'll find the patent with the owner, Phillip Baugher and the Assignee, Adams County Nursery. (The Baugher's own Adams County Nursery.)

The application was filed on Dec. 22, 1998 and patent granted on Oct. 24, 2000. The patent lasts 20 years from date of filing the application (It used to be 17 years from the date the patent was granted.) So it expires in 2018.

Seed patents are generally for row crops and tubers. GMO patented seeds can't be saved back. Non-GMO patented seed can be saved back, but the saved seed can't be sold.

"It used to be a copyright lasted 50 years (which is plenty long IMO) but not long ago lawmakers were lobbied into stretching it to 75 years."

I was wrong on that. Copyrights currently last 70 years after the death of the author. See: Copyright.gov


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RE: what do you think about patented trees/plants?

Interesting, After searching the patent site for Neal Peterson's paw paws, I only found three. They are...

1 PP15,900 Pawpaw tree named `Levfiv`
2 PP14,453 Pawpaw tree named `Aidfievate`
3 PP14,452 Pawpaw tree named `Wansevwan`

I've noticed that on listings of Peterson's paw paws that the name is trademarked. Could it be that,Shenandoah, Susquehanna, Rappahannock, Allegheny, Potomac & Wabash are only trademarked names of paw paw cultivars and not actually patented? If they are patented, when do those famous 6 paw paws come out of patent? Where can we find that out?


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RE: what do you think about patented trees/plants?

My guess is those three are his original three. Plant patents often use different names as varieties often get renamed for better marketing (I believe it helped in this case, what bizarre names!). If you read the patents in detail you can probably match to the published descriptions of the three under their now-common names.

His three more recent releases could have patents filed but not yet granted. That is my guess since they are pretty recent and it takes a few years for the patents to be processed.

Scott


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RE: what do you think about patented trees/plants?

PS I Googled on the goofy names and found a mapping from them to the common names -- see link below, Nolin's catalogue gives the relationship.

Scott

Here is a link that might be useful: Nolin pawpaw catalog giving Neals patents


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RE: what do you think about patented trees/plants?

@Gonebannanas

You are correct, the patent is limited to the physical plant that produces fruit/pollen itself. So if you planted a seed from a fruit/seedpod or cross pollinated it would be fine as those are both natural functions of the plant or would happen without human intervention.


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RE: what do you think about patented trees/plants?

Good to know information folks. Thanks.


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RE: what do you think about patented trees/plants?

My beef is with nurseries that want to continue colecting royalties after a cultivar's patent has expired. I ran accross that in 2011 when shopping for pluots.
Dan


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RE: what do you think about patented trees/plants?

The nurseries have long been sloppy about expiring patents, they have better things to do than keep track of it. But now with people able to Google up the patent in five minutes I expect to see things updated more regularly. I have sent emails to some nurseries pointing out expired patents and they have been good about updating their information.

Scott


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RE: what do you think about patented trees/plants?

"I suppose you're right. Practically speaking club varieties will probably leak out once the patents expire. It's a bit sad though, the public will have to rely on someone stealing the cultivar for it to become public."

This is the real crime, the american patent system is broken in 2012 and largely only serves the interests of the powerful at the expense of the citizenry. It's not just (or even primarily) plant patents that are the issue here.


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RE: what do you think about patented trees/plants?

If it wasnt for people, since the dawn of agriculture, sharing cuttings or hopping fences and sneaking cuttings across the world, these universities would never of had the chance to "patent" their varieties.

With that said, I understand some of the hard work that goes into making a variety better and good enough to patent so I dont mind paying an extra couple bucks to have the variety. BUT I will take cuttings as I see fit and use them for myself. This is MOTHER NATURE after all.


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RE: what do you think about patented trees/plants?

Did that Cherry variety have the initials SR? I agree with most but disagree with giving away or sharing patented scions. I think for your own use and grafting you should be allowed to a reasonable extent as long as you aren't propogating whole new trees with said variety. The only time I disagree is with plants that naturally runner etc... extensively. For example, if I buy 100 patented strawberry plants, I think it's unreasonable to be expected to eliminate all the runners. And fruitnut kind of hit onto it too... if you buy like 3 patented varieties and graft them together I don't see what would be wrong with that.... your number of trees is still 3.


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