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| Is it required by law to wait until the patent expires to propagate a patented plant, or does the patent apply only to sales of patented material. E.g., I have an Ison's variety muscadine I'd like to propagate for personal use. I'm pretty sure the patent expires this November. Do I legally need to wait until then? |
Follow-Up Postings:
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- Posted by Ferroplasm 7b (My Page) on Mon, Sep 8, 14 at 14:57
| This question may be moot, as I realized Ison is out of patent if the 20 year rule applies here. |
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- Posted by milehighgirl CO USDA 5B/Sunset 2B (My Page) on Mon, Sep 8, 14 at 16:27
| I recently asked the same question. |
Here is a link that might be useful: Question about plant patents
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- Posted by Appleseed70 6 MD (My Page) on Mon, Sep 8, 14 at 17:29
| I understand your concern for patent rights on plants (I agree with it too) and your desire for doing the right thing. Breeders deserve to get paid for their efforts and successes, since so much failure is part of the process. I think that is commendable. Having said that, if it's close to expiration anyway I'd say go for it. I doubt the plant patent police will ever track you down. |
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- Posted by Muscadines978 7, Dalton, Ga. (MuscadinesAndMore@Gmail.com) on Mon, Sep 8, 14 at 20:05
| This quote might interest some people out there: Rights Conveyed by a Plant Patent Grant of a patent for a plant precludes others from asexually reproducing or selling or using the patented plant. A plant patent is regarded as limited to one plant, or genome. A sport or mutant of a patented plant would not be considered to be of the same genotype, would not be covered by the plant patent to the parent plant, and would, itself, be separately patentable, subject to meeting the requirements of patentability. A plant patent expires 20 years from the filing date of the patent application. As with utility applications, when the plant patent expires, the subject matter of the patent becomes public domain. Check out these links: |
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- Posted by Appleseed70 6 MD (My Page) on Tue, Sep 9, 14 at 0:53
| I wonder how the law handles plants whose rights are held by syndicates, such as what Cornell recently done with Snapdragon and Rubyfrost apples? They were bred using state and federal taxpayer dollars and then Cornell cleverly creates a syndicate whereby only licensed syndicate members (in this case reserved only for NY growers who joined), have the right to possess that plant or tissue. This was also done with the Jazz apple too I think and I'm sure many other things. Maybe the Cutie oranges too. |
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| Appleseed, I don't understand your question. Those whose rights are held by syndicates are subject to the same patent law. They are public domain 20 years after the patent was filed. But you would still need a source for propagation material if you wanted to reproduce it. I'm curious what defines a "sport". If I see a branch that is a little more sun-kissed and the blush a bit rosier, can I call it a sport and propagate, or do I need some type of genetic testing? |
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| Murky, Appleseed is referring to club varieties. Whereby the owner(s) of the club variety only release it to those who sign a contract saying they won't propagate or distribute the plant material. The owner of the variety then gets a cut of every bushel of fruit sold (all spelled out in the contract). It's a profit windfall for the owner of the variety, as the royalties collected on the fruit sold are exponentially higher than royalties that would be collected on the sale of trees. The contract has no expiration and no one else can sell the apple unless they're in the "club". |
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- Posted by Appleseed70 6 MD (My Page) on Tue, Sep 9, 14 at 22:47
| yeah...what olpea said |
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- Posted by Appleseed70 6 MD (My Page) on Tue, Sep 9, 14 at 22:56
| I'm curious what defines a "sport". If I see a branch that is a little more sun-kissed and the blush a bit rosier, can I call it a sport and propagate, or do I need some type of genetic testing? Good question. I'd guess you better be prepared to pay for genetic testing should the patent holder drag you into court claiming infringement. I'd also guess that you'd be hoping that testing showed some deviation in DNA makeup. I'm not sure who has to do the proving though...you as the defendant or the patent holder plaintiff. |
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- Posted by Muscadines978 7, Dalton, Ga. (MuscadinesAndMore@Gmail.com) on Tue, Sep 9, 14 at 23:11
| Now we are getting complicated where only the attorneys make the money and every one else losses. |
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| Olpea, I understand generally how the club arrangements work, but that doesn't change the application of patent law. If the patent on a club apple expires, you legally free to propagate it. But good luck finding material. If a club grower violates his contract by giving you scion wood, I think the risk is his, not yours as he would be violating a civil contract. If you managed to recreate a tree from tissue culture or something, then more power to you. |
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- Posted by Appleseed70 6 MD (My Page) on Wed, Sep 10, 14 at 2:31
| Are you a lawyer murky? Is it required to have a patent when a contracted syndicate is in place? |
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| Are you a lawyer murky? You don't have to be a lawyer to understand you have no obligation to follow a contract you didn't sign. And if the tree is public domain, you can grow it. So yeah you're free and clear. |
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| "Olpea, I understand generally how the club arrangements work, but that doesn't change the application of patent law. If the patent on a club apple expires, you legally free to propagate it. But good luck finding material. If a club grower violates his contract by giving you scion wood, I think the risk is his, not yours as he would be violating a civil contract." Murky, Oh, OK I understand what you were saying now, and agree. Once the patent runs out, the club owner(s) lose ownership of the apple. Pink Lady started out as a club variety, but now anyone can grow it. Of course Trademarks are still enforceable, so someone legally can't sell the fruit or trees using the trademarked name, without approval. |
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- Posted by nyRockFarmer 5A (My Page) on Wed, Sep 10, 14 at 10:02
| From my perspective, giving someone scion would isn't a violation of a propagation restriction. The violation only occurs if it can be proven in court of law that a tree contains a successful graft of patented variety in which no royalty fees were paid to the patent holder. However, that is just my common sense opinion. I don't know what guidelines the legal system is using. It's a patent holders responsibility to invest in the enforcement of any usage restrictions. They have to prove in court that there was a violation or settle out of court. Usually a patent holder will only prosecute if they are confident of recovering the legal costs and the whole endeavor is financially or personally beneficial to them. |
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- Posted by Appleseed70 6 MD (My Page) on Wed, Sep 10, 14 at 11:34
| Are you a lawyer murky? You don't have to be a lawyer to understand you have no obligation to follow a contract you didn't sign. And if the tree is public domain, you can grow it. So yeah you're free and clear. Drew...I addressed that to murky, and was not being a wise a** , I was serious. He sounded as though he may have some legal background. Drew...if you didn't sign the contract you couldn't legally have the plant material. Our discussion had turned to syndicated varieties which are not in the public domain. Again...the reference was Sanpadragon and Rubyfrost...Cornell's latest releases. Are we even sure that these syndicated varieties are handled in the same way? Is it required that they be patented or is the syndication itself the legal protection? Sounds like they probably are since Olpea pointed out that Pink Lady began as a club apple...I didn't know that. I thought only the name "pink lady" was the deal there...that the apple Cripp's Pink pre-existed it. I do know they are sold under both names now in the supermarkets. |
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