From the patent documentation stating the patent only applies to original plant and mutations/sports would not apply, does that mean if you induced a plant to become a tetraploid / aneuploid of the original you could sell it legally? All the best, Michael On Thu, Jun 21, 2018 at 11:13 AM, Tony Avent <Tony@plantdelights.com> wrote: > All; > > Actually, Plant Patents are more broad in their scope..they cover all > clonal propagation, not just commercial propagation. The idea of a patent > is to promote invention, and to reward inventors. In exchange for fully > disclosing how the new plant was produced, inventors are granted 20 years > of propagation protection for their new plant. Sadly, many applicants lie > on the patent application, which is Federal crime. Also, in an attempt to > gain protection outside of the 20 year legal window, people will trademark > the plant or name of the plant. This is highly illegal, since no product > or the name of any product may be trademarked. Trademarks can only be used > to designate origin of the product. Patents and trademarks are not the > problem. That would be like saying cars or alcohol should be banned > because some people abuse it. The problem is simply unscrupulous people who > abuse the system. Below are two sections from the US Patent and Trademark > office that may answer other questions. > > If you have more questions on the illegal use of trademarks, you can find > my article on the subject at > https://plantdelights.com/blogs/articles/… > > Rights Conveyed by a Plant Patent > Grant of a plant patent precludes others from asexually reproducing, > selling, offering for sale, or using the patented plant or any of its parts > in the United States or importing them into the United States. A plant > patent is regarded as limited to one plant, or genome. A plant derived from > a sport or a mutant is unlikely of the same genotype as the original plant, > and thus would not be covered by the plant patent to the original plant. > Such plant derived from a sport or such mutant may itself be protected > under a separate plant patent, subject to meeting the requirements of > patentability. A plant patent expires 20 years from the filing date of the > patent application. As with utility patents, when the plant patent expires, > the subject matter of the patent is in the public domain. > > Provisions and Limitations > > Patents to plants, which are stable and reproduced by asexual > reproduction, and not a potato or other edible tuber reproduced plant, are > provided for by Title 35 United States Code, Section 161 which states: > > "Whoever invents or discovers and asexually reproduces any distinct and > new variety of plant, including cultivated sports, mutants, hybrids, and > newly found seedlings, other than a tuber propagated plant or a plant found > in an uncultivated state, may obtain a patent therefor, subject to the > conditions and requirements of this title. > > The provisions of this title relating to patents for inventions shall > apply to patents for plants, except as otherwise provided." > > As noted in the last paragraph of the statute, the plant patent must also > satisfy the general requirements of patentability. The subject matter of > the application would be a plant which is developed or discovered by the > inventor, and which has been found stable by asexual reproduction. To be > patentable, it is also required: > > · That the plant was invented or discovered in a cultivated state, > and asexually reproduced. > > · That the plant is not a plant which is excluded by statute, > where the part of the plant used for asexual reproduction is not a tuber > food part, as with potato or Jerusalem artichoke; > > · That the inventor named for a plant patent application must be > the person who actually invented the claimed plant, i.e., discovered or > developed and identified or isolated, and asexually reproduced the plant; > > · That the plant has not been patented, in public use, on sale, or > otherwise available to the public prior to the effective filing date of the > patent application with certain exceptions; > > · That the plant has not been described in a U.S. patent or > published patent application with certain exceptions; > > · That the plant be shown to differ from known, related plants by > at least one distinguishing characteristic, which is more than a difference > caused by growing conditions or fertility levels, etc.; and > > · That the invention would not have been obvious to one having > ordinary skill in the art as of the effective filing date of the claimed > plant invention. > > > > Tony Avent > Proprietor > tony@jlbg.org<mailto:tony@jlbg.org> > Juniper Level Botanic Garden<http://www.juniperlevelbotanicgarden.org/> > and Plant Delights Nursery<http://www.plantdelights.com/> > Ph 919.772.4794/fx 919.772.4752 > 9241 Sauls Road, Raleigh, North Carolina 27603 USA > USDA Zone 7b/Winter 0-5 F/Summer 95-105F > "Preserving, Studying, Propagating, and Sharing the World’s Flora” > > [plant-delights-logo] > Since 1988, Plant Delights Nursery is THE Source for unique, rare and > native perennial plants. > > This message and its contents are confidential. If you received this > message in error, do not use or rely upon it. Instead, please inform the > sender and then delete it. Thank you. > > > From: pbs [mailto:pbs-bounces@lists.pacificbulbsociety.net] On Behalf Of > Jo&Greg > Sent: Thursday, June 21, 2018 12:43 PM > To: 'Pacific Bulb Society' <pbs@lists.pacificbulbsociety.net> > Subject: Re: [pbs] Question regarding commercial advertising > > Perhaps a note or two regarding patented plants may help. My comments come > from my experience with publishing, and copyright info in both USA and > Canada ... copyright is slightly different yet using the same underlying > principles as a patent. > "Resale" and "propagation" and "commercial" all refer to for-profit > business. Non-profit organizations can offer books, plants, seed, etc., for > sale without crossing copyright -- and as far as I've found out -- patent > regulations. Plant patents are also legally suspect. You cannot patent a > recipe or technique and the horrible Monsanto cases against the grain > farmers aside, some feel the change in the plant is more like a recipe > shift than something new or unique (the DNA is not fundamentally changed), > and natural self-sowing or seed drift from natural sources are outside the > purview of an intent to retail a product. That said, plants can at present > be patented. > > So, I'd go ahead and have that plant sale and seed swap. And remember, > though we are not a group of veggies farmers, when it comes to Big Hort: > "Control my food, control my politics, control distribution, control my > politics." Just my old-hippie-somewhat-anarchistic opinion. > Jo Canning > Vancouver Island, Canada > > -----Original Message----- > From: pbs <pbs-bounces@lists.pacificbulbsociety.net><mailto: > pbs-bounces@lists.pacificbulbsociety.net%3e> On Behalf Of Jan Jeddeloh > Sent: Wednesday, June 20, 2018 4:10 PM > To: Pacific Bulb Society <pbs@lists.pacificbulbsociety.net><mailto: > pbs@lists.pacificbulbsociety.net%3e> > Subject: Re: [pbs] Question regarding commercial advertising > > While we’re griping about Big Horticulture I’d like to add my gripe about > patented plants. I’ve been stung too often by patented pretty faces and > have learned that a patent does not necessarily reflect the value or > grow-ability of the plant, although it seems like it ought to. Too often > big nurseries patent every tiny variation and rush the plant to market. > Sometimes it appears they apply for a patent just to lock up the market for > a year or two and then stop producing the plant once the word gets out that > it’s not a good doer. You go to the nursery, are smitten with the pretty > face, bring home your new plant whereupon it promptly dies. I’ve had this > experience several times. And don’t get me started on the million heucheras > or coneflowers out there. They are sold as perennials but most have an > annual life in your normal, less than perfect home garden. You know, the > home garden that does not have the mythical well drained, evenly moist soil. > > Patented plant are also becoming a problem for plant society plant sales. > I organize our NARGS chapter participation in the Hortlandia sale and we > have to watch that we don’t offer patented plants. As more and more plants > are patented it will become harder to find plants we can propagate. Yes > growing from seed it great but many of our members want to donate divisions > and cutting grown plants. Plant tags get lost and it would be very easy to > inadvertently offer a patented plant for sale. > > I realize plant breeders want to get some kind of return from their > investment of time and money but it shouldn’t be too much to ask that the > plants be good doers and truly unique. They should also be adequately > trailed. One or two years is just not enough. I have found a couple of > patented plants that are worth growing. Geranium “Roxanne” blooms all > summer, does not spit seed all over and is tough. Salvia “Amistad”, while > tender, puts on a great summer show and is much beloved by bees and > hummingbirds. It also seems rather silly to patent plants that will self > propagated. If it’s going to form a big clump you can easily hack apart > gardeners are going to share it around. This takes no real skill. If you > want to patent a plant it ought to require a bit of skill to propagate or > you will lose the battle of controlling its propagation. > > To bring this back around to bulbs does anyone know of any patented bulbs? > I know Terra Nova at one point had applied for a patent on a Cyclamen coum > selection with a Christmas tree marking on the leaves. I wonder if this was > denied because it wouldn’t be hard to find look a likes in many groups of > coum seedlings. It’s not in their current catalog. > > Jan Jeddeloh > > On Jun 20, 2018, at 9:59 AM, Jane McGary <janemcgary@earthlink.net>< > mailto:janemcgary@earthlink.net%3e> wrote: > > > > I've been purchasing plants and bulbs for about 35 years now. I'm > fortunate to live in Clackamas County, Oregon, which has more nurseries > than any other US county, so "local" can mean anything from a daphne at the > farmers' market to a viburnum from the big Monrovia fields on the other > side of the river. I buy some unusual cultivars and rooted cuttings for > cutflowers by mail order, mostly from specialty nurseries. Most years I > obtain some commercial bulbs for planting out in front of the house -- > daffodils to distract the bulb fly from the good ones in back, anemones and > crocuses for the bulb lawn, etc. Almost all of my bulb "collection" has > been grown from seed. > > > > I agree with Robin that there's false advertising by large commercial > nurseries, but small ones do so as well, especially in exaggerating > cold-hardiness. They may not mean to, but if you're growing plants on an > island you don't have the same conditions as most of your customers who > live 150 km or more inland. Conversely, nurseries in colder areas who keep > all their stock in greenhouses may produce plants that are hard to > acclimate to outdoor conditions anywhere. Growing your own from seed is > likely to result in losses, but the survivors will be easier to keep, and > much cheaper. > > > > Two years ago I had the experience Ellen mentions of buying a shrub that > had been bulked up by keeping two cuttings in one pot, but I got it at the > farmers' market and the grower told me about it. It's a hybrid daphne; I > was able to disentangle the root systems, potted them separately for a > couple of months before planting out, and now have two very fine shrubs. > This spring I went on a spending spree on Dianthus cultivars. One nursery > sent me excellent plants, but another's plants had been in their pots far > too long (I repotted them and waited until they recovered to plant them > out). I almost never put a purchased plant into the garden the day after I > get it. For one thing, you have to watch them for disease. > > > > As for bulbs that fail, it helps to understand the growth cycles, > natural habitats, and structure of the particular species and genera. Bulbs > with strong tunics, such as tulips, can stand dry storage much better than > those without tunics, such as most Fritillaria. A species native to rocky > desert will survive storage better than one native to river meadows. A > species native to the alpine zone may not flourish without a long winter > dormancy (hence the plants "hardy in Denver" that can't be grown in lowland > gardens). It is also instructive to learn how commercial bulbs are grown > and processed in the Netherlands, where they can be grown in sand, heavily > fertilized, protected from predators, lifted and kept in warehouses > controlled for temperature and humidity, and exported in advantageous > condition. After a month at Home Depot and transfer to a home garden, > they'll likely perform for a year but that may be the limit of their > adaptability. Moreover, controlled conditions can suppress the activity of > viruses, which may resurface in the home garden; that's why all my tulips > are grown from seed, and I buy lily bulbs only from The Lily Garden, which > I trust to provide clean stock. > > > > So read, read, read, and be prepared to lose some plants anyway. You can > identify an experienced gardener by their possession of a big bag of > plantless labels. > > > > Jane McGary > > > > Portland, Oregon, USA > > > > > > _______________________________________________ > > pbs mailing list > > pbs@lists.pacificbulbsociety.net<mailto:pbs@lists.pacificbulbsociety.net > > > > http://lists.pacificbulbsociety.net/cgi-bin/… > > _______________________________________________ > pbs mailing list > pbs@lists.pacificbulbsociety.net<mailto:pbs@lists.pacificbulbsociety.net> > http://lists.pacificbulbsociety.net/cgi-bin/… > > > --- > This email has been checked for viruses by AVG. > https://www.avg.com/ > > _______________________________________________ > pbs mailing list > pbs@lists.pacificbulbsociety.net<mailto:pbs@lists.pacificbulbsociety.net> > http://lists.pacificbulbsociety.net/cgi-bin/… > > ________________________________ > -------------- next part -------------- > A non-text attachment was scrubbed... > Name: image002.jpg > Type: image/jpeg > Size: 6640 bytes > Desc: image002.jpg > URL: <http://lists.pacificbulbsociety.net/pipermail/pbs/… > 20180621/84a1d444/attachment.jpg> > _______________________________________________ > pbs mailing list > pbs@lists.pacificbulbsociety.net > http://lists.pacificbulbsociety.net/cgi-bin/… > _______________________________________________ pbs mailing list pbs@lists.pacificbulbsociety.net http://lists.pacificbulbsociety.net/cgi-bin/…