What goes around comes around...

Jim McKenney jimmckenney@starpower.net
Tue, 24 Jan 2006 07:10:00 PST
In response to Jim Shields comments: 

Jim, I'm not a lawyer either - I guess it's very apparent. 

When I wrote that post, I was thinking of the rights to cultivars as if they
were copyright rights. My understanding of copyright for print materials is
that - please excuse the clumsy phrasing - the process of creating a work
eligible for copyright and the existence of the copyright are coeval.

In other words, copyright for a work does not exist as a result of
registering the work for copyright, it's always there, so-to-speak. The
formal registration process simply makes it easier for the lawyers to do
their stuff. 

You mentioned patents: I suppose the underlying philosophy for that process
if very different. 

With regard to plant patents, I've often wondered what, at a very practical
level, is being patented. From a functional point of view, it often seems
that it's the name of the cultivar which is being patented. If someone wants
to sell the same plant under a different name, what's to stop them? 

Does the technology exist to conclusively say that any two plant entities
are identical? 

For all we hear about DNA testing in the media, does such technology exist
for humans? I don't think so. I'm reminded of the fuss raised by studies
which purportedly linked Thomas Jefferson and Sally Hemings. Those in favor
of the Jefferson-Hemings liaison insisted that the DNA tests proved that it
happened. Those opposed still say that the only thing the DNA tests show is
that a Jefferson male (in other words, not necessarily Thomas) was involved.

Can we do any better with plants? 

Jim McKenney

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