Excellent Heron!
You said much of what I was thinking and stated it in much better
way than I would have had time or ability to.
A few comments:
(This first is off topic):<<since when did invasions get defined as
Defense?>> I consider the 'Department of Defense' an early form
of politically correct speech.
For most of U.S. history the effectively same organization was
known as the 'Department of War'.
I don't want to get into any thoughts about this war as it will be off
topic and very devisive.
<<For the most part with vegetables, you and I don't even have to
worry about
patents, because most of the varieties offered have hybrid
written all over them.
This is the breeder's way of saying "trade secret"
in neon letters. If you try to
stabilize a hybrid, you select a new
variety officially, and you are good to go.>>
A dirty little secret from a little of what I've read and even smaller
amount of experience.
Some vegetable varieties that are listed as 'hybrids' are not, but are
fixed varieties. They
are listed as hybrids to discourage seed saving. Excluding these
newer laws on the ability
to patent genes, a seed produced variety is not patentable. So the
breeder and/or marketer
has little in the way to protect someone from taking their variety.
You may save the seed and
even remarket the 'hybrid' if isn't such, but under your own name.
<<You can change the name and trademark the new name, but that crap
(pardon the
_expression_) is the work of those investment groups that buy up
retail nurseries,
not legitmate plant people. >>
Trademarks, as I understand them, are weaker, but in some ways more
insidious. A patent
has a limited lifetime and is designed to assist the 'developer' the
ability to recover some
of what they invested in creating their 'idea', but will eventually
become part of the public
domain. A trademark is 'forever' as long as the entity who owns it
continues to protect the
trademark. It doesn't prevent you from propagation, it doesn't
prevent you from selling the
item, but it does prevent you from using the name. And I'm not sure
that it is simply the
work of investment groups. Stark was trademarking long before they
fell apart, and roses and
some other ornamentals are routinely trademarked (sometimes roses are
patented and trademarked).
<<I wouldn't care if you want a few
trees for back-up, but if
you like that breeder's work, you should agree to his/her
terms when you
buy the trees. Just buy a coupla extra and know you are sending
someone's
kid to college or helping to delay the university's ax on the research
orchard site becoming the new bio-tech lab. Want it on a different
rootstock?
Request from a liscensed propagator or pay your fee directly to
the patent holder. >>
I can barely afford to buy a tree that is grafted professionally, much
less 'buy' a couple
of extra. I don't think most 'liscensed propagators' are going to
be responsive to a small
customer to give them a different rootstock. As to paying the fee
directly to the patent
holder, its a nice idea, but as noted we often don't know who they are,
but I'm under the
impression that most propagators end up having 'exclusive' rights with
the breeders material,
in that they (the breeder) only can deal with that propagator or a
limited number of liscensees.
So they can't really 'accept' money from a small propagator. I'm
not certain of this point,
but I believe it to be true.
One thing that would be nice is a 'patent watch' So that we would
know when an item comes
off patent, so that we would not be in violation of any laws once the
material is now public.
I am very troubled by these gene patents. It makes plant breeding
potentially an illegal activity.
It is completely possible that you could get genes from a patented plant
by accident into your
breeding and yet you would still be guilty of violation of the
patent. Upto now, violation of patent
laws (at least for the most part) required doing the act
knowingly.
Not addressed is copywrights as they generally don't apply to
plants. It used to be that a copywright
(a protection of a particular _expression_ of an idea), was the life of the
owner. Then
they gradually became the life of the owner + 50 years. Not too
long ago this was extended
by our Congress to life + 75. If you look inside books lately the
copywright is not held by the
writer, but by a corporation (of the writer's ownership). As
corporations are legal 'persons' but do
not 'die' in the usual sense, does this mean the copyright is
forever?
I think I went over my 2 cent limit. :-)
Chris Mauchline
SE PA, zone 6
40° 5' N 75° 51'W
~650 ft
elevation