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Re: Breeders' Rights


Jim Hawes wrote:

> Openers,
> Seems we are milking Breeders' Rights to death as a subject to discuss.

No argument there Jim.  If anyone really wants to know about plant patents, in relatively straight forward bureaucratese, you can find pretty
much everything here:

http://www.uspto.gov/web/offices/pac/plant/index.html#4

Elsewhere on this site you can also read all of the hosta patent applications that have been approved.

One last milking, maybe.  The message that Dan relayed from the Bowdens seems to indicate that not all plants are covered under the Breeders
Rights program in Europe, which makes sense, and which probably means that there is an application process involved.  They also mention that
there is an Association of some sort that actually employs an inspector.  Now, why would we expect that if we were to get such a law here in
the US, that the process will for some reason be simpler and less expensive than the one we have now.  I worked in the gubment for 12 years
and one of the few things I learned is that polititions and bureaucrats do not simplify.

Chick

>
> 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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