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  • From: Philip Stewart <philstewart24@yahoo.com>
  • To: nafex@lists.ibiblio.org
  • Subject: Re: [NAFEX] Patent quandries.
  • Date: Wed, 15 Feb 2006 11:35:55 -0800 (PST)

Well, at the risk of sounding like Mr. Hardcore Patent
Guy: He definitely should not be accepting money for
them and really shouldn't be giving them away either
(Whether or not he makes money isn't the issue
legally, although to me personally it makes some
difference. Even if he's not profiting, though, he's
interfering with the ability of the developer to
protect their intellectual property rights.) If they
don't get the catalogs, he should say "If you like my
raspberries, you might try ordering plants from..."

Legally speaking, anyway. The company probably doesn't
really care if a handful of neighbors have a plant or
two growing, but by calling them up, he kind of forced
them to act. Failing to enforce a patent sends a bad
message, at very least, and in some cases (not sure if
this applies to plant patents, I think it's more a
trademark issue) failure to condemn a violation that
the patent holder knows of can be cause for the item
to be declared public domain.

Whether he attempted to pay royalties really isn't a
relevant fact, though it was nice of him to do. The
right of the patent holder isn't simply a right to be
paid for the use of their material, it's a right to
control how and by who that material is used. If I
wanted to create a policy of licensing my cultivars
solely to people named "Phil", I could do that for the
duration of the patent, even if other people were
perfectly willing to pay for the right.

It may seem counter-intuitive that they'd turn down
his offer to pay, but having dealt a little with the
complexities of licensing nurseries, I've seen that
each propagator that you bring on board creates a
remarkable amount of paperwork. It simply isn't worth
it for the amount of royalties. Heck, even a lot of
legitimate nurseries don't bring in enough royalties
on some things to make it worth it, though the program
I was involved in made an effort to license pretty
much any interested actual nursery, just on principle.

>From a moral standpoint, I don't really have any
problem with him giving a plant or two away, but
charging for it really is inappropriate. But like I
said, I'm probably more hardline about these things
than most people, and, right or wrong, cases like
these really are pretty small potatoes in the grand
scheme of things.

Incidentally, I make a point of choosing non-patented
cultivars when I can, specifically because of these
sorts of cases. I like giving away plants. It makes me
happy to help other people grow fruit, and this way I
can do it unecumbered by any moral issues.

--Phil

> Message: 2
> Date: Wed, 15 Feb 2006 08:21:37 -0600
> From: Jim Fruth <jfruth@uslink.net>
> Subject: [NAFEX] Patent quandries
> To: <nafex@lists.ibiblio.org>
> Message-ID: <C0189511.2066%jfruth@uslink.net>
> Content-Type: text/plain; charset="US-ASCII"
>
> We seem to be discussing only the propagation of
> trees but let's examine
> another situation: Let's look at patented raspberry
> plants. Anyone who has
> ever raised raspberries knows that raspberries
> produce so many root shoots
> that they become weeds. We dig them out but do we
> always throw them away?
> It is, after all, quite legal to give them away.
> I know someone who sells some of the shoots to
> his neighbors. His
> neighbors won't take them for free and insist he
> take some money for his
> time to carefully dig them out. so, in a way, he is
> charging for his time.
> His neighbors don't receive any catalogs in the mail
> so they don't know
> where to buy them, except from the neighbor.
> This fellow suffered some pangs of conscience and
> called the company that
> he bought his original plants from asking who to
> send royalties to. Instead
> of getting his question answered, he was scolded by
> a company
> representative. Since he made an attempt to learn
> who to send royalties to
> and didn't get his question answered, he now feels
> justified in selling
> plants, charging for his time at digging them.
> How would any of you react in a similar
> situation?
> --
>
> Jim Fruth
> Brambleberry Farm
> Pequot Lakes, MN
> www.bberryfarm.com
> Jams, Jellies and Syrups


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  • Re: [NAFEX] Patent quandries., Philip Stewart, 02/15/2006

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