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Re: Drought Resistant Hostas---Also H. 'Revolution'


Bob, I have experience in patents and intellectual property management from 
my professional business experience, apart from hosta, so can offer the 
following possible helps in this potentially messy situation.

Tattoo, ppaf, literally tells the world that in the U.S. ( since it is a U.S. 
patent and rights apply only here ) the originator or name on the patent 
application intends to police and protect the value of this patent, whether a 
plant, a software idea or piece of machinery. They have every intention of 
asking for a royalty on the patented merchandise, but as of right now he is 
waiting for the issuance or denial of his rights. Same as patent pending. 
Until such is issued they would have to individually negotiate every sale and 
purchase contract to include the value. 

They can sell into commerce WITHOUT that right being issued, but preserve it 
by advising the buying world, as Tony correctly indicated. Once the patent is 
granted the status changes and all the rights to licensing and propagation 
contracts revert or fall back to him, for 17-20 years, as long as he 
continues to pay the fees and maintains the active status of the patent.

Anyone who violates his patent rights, whatever he chooses those to be, is 
then subject to damages determined by a court of law TIMES 3. He can prevent 
propagation, sales, sell only through licensed distributors, any of a number 
of different ways to protect his " intellectual property".

If he receives a patent and over time chooses not to enforce it equally to 
all parties, he or she could lose the patent value, as it then is deemed to 
be in the commercial realm. 

In the plant world patents are generally used when there is a plant or 
horticultural material whose characteristics are so unique that it is easily 
policed and enforcable. Hostas will have a tough time, except if you are a 
commercial grower, whereby it can become economically disadvantagous to 
ignore these rules of law. 

Without going into the specifics, Kodak used some patented instant film and 
camera technology from Polaroid, ignoring the patents and intellectual 
property ( or brains ). After a few years Polaroid proved it and the patent 
courts awarded : ready for this 

$1 Billion damages, 

which was the tripled to $3 Billion. Due to the time to prosecute the case, 
courts added $1 Billion in interest  Total penalty: $4 BILLION

They settled out of court for something less, but over $ 1 Billion, as I 
understand it.  

It obviously seriously effected the corporate makeup of Kodak. The curious 
thing is Kodak knew they were in violation and kept using it. Polaroid is 
still receiving payments, even though the technology is now out of date.

I suspect that most respectable commercial hosta growers would gladly pay the 
royalty to stay clean and pass a $1-2  upcharge to the consumer. A consumer 
would be equally guilty if they divided a plant and received money for it. If 
you don't tell anyone what you do with your ppaf plants or where you got 
them, it would not become an issue. But who can't tell someone where they got 
"this great deal on so and so plant"

Also if you would happen to auction a plant either in person or 
electronically that had been patented, you would be liable for damages, 
should enforcement occur. And since they can come in and ask  a grower for 
their sales records are on 'Tattoo', for example, you would have to answer by 
subpoena if not willingly.

Actually this patent stuff is a response to major commercial theft by other 
parties and countries that have little or no investment in research and 
development and ethics. They shall remain unnamed but rest assured they are 
going ahead and violating many patent laws, with all sorts of material.

I spoke about 15 years ago, when my mother had several hostas she considered 
worth patenting, with one of the leading horticultural plant suppliers that 
maintains plant patents and pays royalties on patents to the originator. They 
felt the international influence on rapid hosta production and increase in 
tissue culture production would negate patents. 

You could imagine the financial impact of a patent on 'Gold Standard', which 
was considered briefly at the time it was first sold to Walters Gardens.

Hope this helps - let me know if I have only confused you.
bruce
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