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Re: Breeders' Rights

  • Subject: Re: Breeders' Rights
  • From: Jim Hawes <hawesj@atlantic.net>
  • Date: Sat, 21 Jul 2001 18:04:07 -0400

Openers,
Seems we are milking Breeders' Rights to death as a subject to discuss.
Michael asked ...What happens when a patented plant develops a sport?

In my opinion, in such a case, the patented plant has produced a leaf, an
axillary bud or a division which is not the same genetically as the
patented part of the plant. If the sport is a different color , or is
variegated, it has changed in  its chloroplast  make up because of
chloroplast mutation(s)  ( or possibly a nuclear mutation) ,thus it is
different genetically in its  characteristics .These changes in
characteristics were brought about because of genetically controlled
factors. I would make the claim that this portion of the plant  is no
longer the patented cultivar and that I could remove the portion that does
not correspond to the description of the plant I purchased as a patented
plant without violation of the patent . The sport would be mine and not the
originator's ( of the patented plant)....Clumsy sentence, isn't it?

Finally, if this went to court, I would cite as authorities,  the numerous
plant scientists who have determined the true causes of the origin of new
sports in plants in general and in hostas specifically.

Jim Hawes

/////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////

"Pinterics, Michael W (MED)" wrote:

> One thing that has occasionally crossed my mind
> with patented plants is what happens when the plant
> sports.  Since the plant is not to be divided or
> propagated with out the patentee's permision... you
> are essentially dividing off the sport which is
> part of the patented plant...  how much credit/
> possible permision/registration issues are given
> back to the patent originator?  Or are there any
> issues?
>
> I just figured that I'd throw it out there as
> this thread was cooling down abit, unlike the
> weather here in the midwest...
> Mike
> Milwaukee
>
> -----Original Message-----
> From: Chick [mailto:chick@bridgewoodgardens.com]
> Sent: Saturday, July 21, 2001 1:57 PM
> To: hosta-open@mallorn.com
> Subject: Re: Breeders' Rights
>
> Or what would happen if an alligator ate your hosta and later you found
> a
> pile of alligator flop and there were two hostas growing out of it,
> would
> the alligator be guilty of patent infringement?  And who would you sue?
> The alligator, or the person who let his alligator eat your hosta?
>
> halinar@open.org wrote:
>
> > Chick:
> >
> > >If your wholesaler friend divides a patented plant he has violated
> > >the patent.
> >
> > What happens when the plant divides itself!  Is the plant then in
> > violation of the patent laws?
> >
> > Actually, the original purpose of the plant patent laws were to
> > protect things like trees and shrubs where you took cuttings and
> > rooted or grafted them.  The patent laws are really quite vague when
> > it comes to herbaceous perennials that naturally divide.
> >
> > Also, plant patents are only good IF the patent owner inforces the
> > patent, and there are some other things that you have to comply with
> > in regard to labeling.
> >
> > Joe Halinar
> >
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