North American Fruit Explorers mailing list at ibiblio

[Tom Volkening <volkenin@mail.lib.msu.edu>]

Tom,
Here is some information about U.S. plant patents from the U.S. Patent &
Trademark Office  http://www.uspto.gov/web/offices/pac/doc/general/plant.htm
U.S. plant patents last for 20 years.  To find out if a variety is patented
in the U.S. you can search the U.S. Patent database.  The URL for it is

http://164.195.100.11/netahtml/search-bool.html

As for who to pay royalties to I think you would contact the patent assignee
listed in the patent. Below is an example of a patent from the database for
the Honeycrisp apple.

I am not really familar with Canadian patents but here is the URL for the
Canadian Intellectual Property Office.  They would have information about
Canadian plant patents(if they grant them) and they have a Canadian Patents
database.  http://Patents1.ic.gc.ca/intro-e.html

United States Patent 
                                                                     PP7,197

 Luby ,   et al. 
                                                              March 20, 1990



Apple tree: Honeycrisp 

                                   Abstract

An apple tree having a slightly upright form with moderately vigorous
growth; a superior fruit with solid to mottled red color over a yellow
background and a crisp and juicy fruit texture; an extended season of
harvest but with generally even ripening of fruit so that repeat pickings
are unnecessary; good hardiness with little winter injury when grown near
Excelsior, Minn. at
approximately 45.degree. latitude; and having annual fruit production with
no flower thinning required. 


 Inventors: 
           Luby; Jim (St. Paul, MN); Bedford; David S. (Delano, MN) 
 Assignee: 
           Regents of the University of Minnesota (Minneapolis, MN) 
 Appl. No.: 
           268363
 Filed: 
           November 7, 1988


 Current U.S. Class:
                                                                    PLT/161 
 Intern'l Class: 
                                                                 A01H 005/00
 Field of Search: 
                                                                      Plt/
34 

PLANT PATENTS
              (Excerpted from General Information Concerning Patents print
brochure)

The law also provides for the granting of a patent to anyone who has
invented or discovered and asexually reproduced 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.

Asexually propagated plants are those that are reproduced by means other
than from seeds, such as by the rooting of cuttings, by layering, budding,
grafting, inarching, etc.

With reference to tuber-propagated plants, for which a plant patent cannot
be obtained, the term "tuber" is used in its narrow horticultural sense as
meaning a short, thickened portion of an underground branch. Such plants
covered by the term "tuber-propagated" are the Irish potato and the
Jerusalem artichoke.

An application for a plant patent consists of the same parts as other
applications with the addition of a plant color coding sheet. The term of a
plant patent shall be 20 years from the date on which the application for
the patent was filed in the United States or, if the application contains a
specific reference to an earlier filed application under 35 U.S.C. 120, 121
or 365(c), from the date of the earliest such application was filed.

The application papers for a plant patent and any responsive papers pursuant
to the prosecution must be filed in duplicate but only one need be signed
(in the case of the application papers the original should be signed); the
second copy may be a legible copy of the original. The reason for providing
an original and duplicate file is that the duplicate file is sent to the
Agricultural Research Service, Department of Agriculture for an advisory
report on the plant variety.

The specification should include a complete detailed description of the
plant and the characteristics thereof that distinguish the same over related
known varieties, and its antecedents, expressed in botanical terms in the
general form followed in standard botanical text books or publications
dealing with the varieties of the kind of plant involved (evergreen tree,
dahlia plant, rose plant, apple tree, etc.), rather than a mere broad
non-botanical
characterization such as commonly found in nursery or seed catalogs. The
specification should also include the origin or parentage of the plant
variety sought to be patented and must particularly point out where and in
what manner the variety of plant has been asexually reproduced. Where color
is a distinctive feature of the plant, the color should be positively
identified in the specification by reference to a designated color as given
by a recognized color dictionary. Where the plant variety originated as a
newly found seedling, the specification must fully describe the conditions
(cultivation, environment, etc.) under which the seedling was found growing
to establish that it was not found in an uncultivated state. 

A plant patent is granted on the entire plant. It therefore follows that
only one claim is necessary and only one is permitted. 

The oath or declaration required of the applicant in addition to the
statements required for other applications must include the statement that
the applicant has asexually reproduced the new plant variety.  If the plant
is a newly found plant, the oath or declaration must also state that the
plant was found in a cultivated area. 

Plant patent drawings are not mechanical drawings and should be artistically
and competently executed. The drawing must disclose all the distinctive
characteristics of the plant capable of visual representation. When color is
a distinguishing characteristic of the new variety, the drawing must be in
color. Two duplicate copies of color drawings must be submitted. All color
drawings should be so mounted as to provide a 1-inch margin at the top for
office markings when the patent is printed.

Specimens of the plant variety, its flower or fruit, should not be submitted
unless specifically called for by the examiner.

The filing fee on each plant application and the issue fee can be found in
the fee schedule. For a qualifying small entity filing and issue fees are
reduced by half.

All inquiries relating to plant patents and pending plant patent
applications should be directed to the Patent and Trademark Office and not
to the Department of Agriculture.

The Plant Variety Protection Act (Public Law 91577), approved December 24,
1970, provides for a system of protection for sexually reproduced varieties,
for which protection was not previously provided, under the administration
of a Plant Variety Protection Office within the Department of Agriculture.
Requests for information regarding the protection of sexually reproduced
varieties should be addressed to Commissioner, Plant Variety Protection
Office, Agricultural Marketing Service, National Agricultural Library Bldg.,
Room 0, 10301 Baltimore Blvd., Beltsville, Md. 20705-2351. 




                 

Tom Volkening
Engineering Library
1515 Engineering Building
Michigan State University
East Lansing, MI 48824-1226
Phone:  517-432-1498
Fax:      517-353-9041
Email:    volkenin@msu.edu
              volkenin@egr.msu.edu


-----Original Message-----
From: Thomas Olenio [mailto:tolenio@sentex.net]
Sent: Thursday, July 12, 2001 9:52 AM
To: nafex@yahoogroups.com
Subject: [nafex] Patents?


Hello,

How do you find out if a particular variety is covered by a patent?

How long are plant patents good for?

How do you find out where to send royalties if patented plants are
propagated? (personal use only)

Thank you.

Regards,
Tom

--
Thomas Olenio
Ontario, Hardiness Zone 6a


 

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