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Re: CULT: Patently Confused

From: Bill Shear <BILLS@hsc.edu>

>   If you can patent a rose, you should be able to patent
>an iris, right?

Yes, you can.  And Schreiners' patented at least two irises some 30 years
ago, one of which was 'Giant Rose.'  I suspect the patent process proved to
be unworkable and unprofitable, and was summarily abandoned by iris
breeders.  I know of no iris patents that have been issued since that one

Has patent law been changed since to
>prevent a plant from being patented now?

No, you can still patent a plant (or even a gene!) according to the
relevant patent law.

Would the patent
>prevent anyone else from selling "your" iris?

No, it would not, but you would have to license the sale to that person,
and they would pay you a royalty on each plant sold.  This would apply only
to vegetative reproduction.  Once purchased, the iris could be used in
another person's breeding program without a royalty.

Is it the
>genetic makeup of the iris that carries the patent, or does
>it include the name (i.e. YOSEMITE SAM)? Could I suddenly
>decide to take out a patent on, say BREAKERS, because
>Schreiner's has failed to do so?

The patent applies to the iris itself and all of its vegetative increase,
as well as the name.  Incidentially, names are copyrighted, not patented.
There is  a difference--you can patent an invention or a process, but
intellectual property is copyrighted.

>   BTW, Kodak has a patent on the color yellow that they
>use for their boxes...could you patent a color on an iris?

Obviously not.  Kodak could not have a patent on the color yellow, but on
the particular dye that is used to color the boxes.  You could use exactly
the same shade of yellow on your boxes, and if you could prove it was
created by a different dye or combination of dyes, have a good legal case
when Kodak sued you.  However, if the particular shade itself were
COPYRIGHTED, you'd be in more trouble because copyright law prevents
duplication by any means.

I checked these answers through an attorney friend, who wishes me to
emphasize that he is NOT a patent or intellectual property lawyer!

My personal opinion is that the Schreiners' experience shows that patenting
an iris is impractical and counterproductive.  First, the plant would have
to be so unique and unusual that other growers would pay the royalty just
to sell it.  That would have to be some crazy iris--a real world-beater
from the get-go.  And how many of those have there been?  I would suspect
that even SNOW FLURRY, STEPPING OUT, BATIK or IMMORTALITY would never have
become popular or widely distributed if they had been patented.  After all,
what became of GIANT ROSE?  It was "unique" because of the huge size of its
blooms.  Anybody grow it today?
Secondly, iris multiply so rapidly that prices drop very significantly in
just a few years.  A patented iris would stay expensive (and therefore not
be much purchased).  Vast amounts of it would be composted each year.

If the early horned irises (a real innovation) had been patented, the
development and popularity of these plants would have been slowed down

No, patenting might be reasonable for roses and few other ornamentals, but
it is not a productive alternative for irises.

I would strongly urge anyone considering patenting an iris to reconsider.

Bill Shear
Department of Biology
Hampden-Sydney College
Hampden-Sydney VA 23943
FAX (804)223-6374

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