North American Fruit Explorers mailing list at ibiblio

[jim <jmc1@epix.net>]

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.

//Jim
www.cumminsnursery.com

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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