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nafex - Re: [NAFEX] Patented Varieties

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  • From: list@ginda.us
  • To: North American Fruit Explorers <nafex@lists.ibiblio.org>
  • Subject: Re: [NAFEX] Patented Varieties
  • Date: Mon, 24 Nov 2003 21:31:50 -0500

1. No, you cannot graft a patented cultivar, even for your own noncommercial use.
2. No, same as above.

Note however, that patents expire. If the plant was patented many years ago and is no longer sold by the patent holder, the patent may have expired, in which case these would be okay legally, and morally. Personally, I have trouble respecting the moral claim to a patent or a copyright of anything that the owner of is no longer selling. (Selling a low volume item every few years counts as "still selling", but there's lots a abandoned property out there. It may not be legal, but I haven't been convinced it's immoral to clone or copy in these cases.)

In some cases, you can buy the rights to copy a patented plant fairly cheaply. (At least, cheap if you just want to make a couple of plants for you and your friend.) I would pursue this if I had a patented plant I wanted to propagate.

3. Good question. I don't know the answer. If the people you bought the original plant from are still selling it, they may know. Even if they aren't selling it, they may be able to direct you to the patent holder, or some other seller. You could also research commercial sellers through the seed-savers book - any reputable commercial seller ought to know the patent status of whatever they are selling. Most of them will also have someone who could share that with you.

Ginda



On Nov 24, 2003, at 6:36 PM, shambeda wrote:

I have some questions concerning patented varieties of apples. The questions are
related to handling patented varieties (patented by others) without getting into
trouble with the law or the patent holder. I was hoping that one of you can
provide me some insight and answers to these questions, and perhaps other related
questions that I have not considered.

1. Can I take a scion from a tree I own and graft it onto another tree I own?
2. Can I give a patented scion to another homeowner?
3. How do I determine if the tree (named variety) is patented?

Thanks in advance for you wisdom and guidance.
Steve




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