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  • From: "Dennis Norton" <dmnorton@royaloakfarmorchard.com>
  • To: "North American Fruit Explorers" <nafex@lists.ibiblio.org>
  • Subject: Re: [NAFEX] Patents for all?
  • Date: Wed, 22 Feb 2006 13:04:25 -0600

Chris wrote "If you look inside books lately the copyright 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?"
 
 
Yes, Chris, is does mean the copyright last forever, as long as the corporation exists.  This assures the writer's estate will maintain the copyright for future generations to receive any and all royalties due to the copyright holder, particularly if there is some sort of sequel to their original writing, such as "Gone with the Wind" and it's later sequel, etc.  It is a good tool especially for estate planning.  We have actually had the orchard here put into a family trust so that the  it will be passed on to future generations of the family.  It also shields those future generations from estate/inheritance taxes. 
 
 
Dennis Norton
Royal Oak Farm Orchard
http://www.royaloakfarmorchard.com
----- Original Message -----
Sent: Wednesday, February 22, 2006 10:41 AM
Subject: [NAFEX] Patents for all?

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



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