[nafex] Patent Rights/Royalties

jim jmc1 at epix.net
Thu Dec 7 15:39:26 EST 2000

Patent law specifically forbids
    1) Vegetative propagation of a patented variety
    2) Selling scionwood of a patented variety
    3)  Giving scionwood of a patented variety
    4) Permitting anyone to take scionwood from a patented tree belonging
to you

Granted, very few have been prosecuted for sharing with a friend  or
letting a friend carve off a stick -- but it is breaking the law.

Sexual propagules would be another matter.  I think  US patent law has not
permitted claims that either seedlings or sports of a patented variety
belong to the patent holder.  I understand, though (and could well be far
off base) that the new UPOV regulations do permit such claims.  In any
case, in the licenses being granted on many recently patented varieties, a
clause is included to the effect that seedlings and sports do belong to the
patent holder.  I think this has not been tested in court.  It seems to me
a ridiculous concept.

There is a third avenue that merits attention.  Mention was made a few days
ago of closed circuit production and marketing, e.g. with Pacific Rose and
some other New Zealand apples.  The general idea is that trees are produced
in limited quantity, usually by only one nursery, then delivered to a few
selected growers;  production is channelled exclusively through one sales
desk;  the trees remain the property of the patent holder and are, in
effect, rented to the grower for the lifetime of the tree.

The concept has been used on limited scale in Australia by Henry Franklin
of Queenland. Henry bred Adina and, later, Goldina apples.  He produced and
delivered trees to about 30 growers, who really made a killing;  Henry was
paid, I believe, 30¢ a bushel rent -- so Henry did well too.  One outsider
lifted some scionwood, made a block of trees.  Henry had him arrested for
theft;  tried; convicted; fined $1.00.  Then Henry laid on a civil suit and
bankrupted the thief.  Same could be done under the Pacific Rose scenario.

As a small nurseryman, I loathe having to work in the patent system.  To
us, it is especially hurtful to be denied access to new varieties that are
held by only a few giant nurseries.  Fortunately, almost all the university
breeding programs -- Cornell, Minnesota, Arkansas, and Purdue in particular
-- are working within very broad licensing guidelines.


Christopher Mauchline wrote:

> Maybe this could be answered by those on this list who are in the
> nursery industry (or by lawyer if there are any on this list):
> Someone recently queried me if it was a patent violation if someone
> exchanged scion wood that was patented if no fee was charged by the
> provider of the wood. I ventured the opinion that I thought it was a
> violation, but I am not a professional nursery person.
> I also believe I've read that the first generation progency of
> patented varieties may fall under patent protection - is this also
> true?
> Thanks,
> Chris Mauchline
> SE PA, zone 6

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