Restrictions on patented varieties

[Tomas]

Hi,

What are the restrictions on patented varieties in terms of propagation? If a variety of say mango or lichee is patented (not even sure how you can know that), are you allowed to clone it with grafting? For yourself? To distribute? To sell?

Tomas

[Guanabanus]

Certainly may not graft for selling the plants or planting a commercial grove or distributing in competition with a nursery that has permission to propagate them.  Grafting one for your own yard is usually also a violation, but less likely to be caught.

[Tropicdude]

I wonder if there is some kind of database with listed patents and what requirements for cloning,  in other words how much is the royalty if any that one must pay.

I noticed that Coconut Cream Mango is sometimes marked as "patented"  and some nurseries add a $5 surcharge.

In the GW forum I asked about this , and was told, it was just patent pending still,  so how does one know if not marked? for example, is Maha Chanok patented somewhere in the world?

[DuncanYoung]

Evidently there are no restrictions on changing the name of a patented mango variety.  i.e.' Young' and the stunt that PIN pulled.

[natsgarden123]

Evidently there are no restrictions on changing the name of a patented mango variety.  i.e.' Young' and the stunt that PIN pulled.

How did that happen anyway?

[murahilin]

Hi,

What are the restrictions on patented varieties in terms of propagation? If a variety of say mango or lichee is patented (not even sure how you can know that), are you allowed to clone it with grafting? For yourself? To distribute? To sell?

Tomas

Plant patents is one of my favorite subjects of the law so let me see if I can help answer your questions.

Har is right about the restrictions on propagation. One thing to add is that even selling the fruit of a patented variety could possibly be patent infringement without permission.

You can easily find out what cultivars are patented by searching the USPTO database. Google also has a patent search feature that they recently integrated into the regular search I think. It used to be separate at one point.

I wonder if there is some kind of database with listed patents and what requirements for cloning,  in other words how much is the royalty if any that one must pay.

I noticed that Coconut Cream Mango is sometimes marked as "patented"  and some nurseries add a $5 surcharge.

In the GW forum I asked about this , and was told, it was just patent pending still,  so how does one know if not marked? for example, is Maha Chanok patented somewhere in the world?

You can search the USPTO for the plant patents.

Jason (palo alto) this forum who made the most comprehensive fruit tree patent list that I've seen. Here: https://docs.google.com/spreadsheet/ccc?key=0AqoBKzfSt0AudEw2NHpyY3ViWnBEWkhtaHdoWnZib3c

For specific royalties you would likely have to contact the patent holder.

The Maha Chanok is not patented anywhere in the world and if it was, it would be an invalid patent for a few reasons.

A patent in the US only lasts 20 years.

I've been searching for the patent application for the CC for a while now and I have not seen it yet. I think it's released to the public after 18 months. It will be interesting to see if they actually applied and if they did apply if it will be a valid patent because of the timings.

[murahilin]

Evidently there are no restrictions on changing the name of a patented mango variety.  i.e.' Young' and the stunt that PIN pulled.

Unfortunately, since the patent expired they were able to rename it. It's the same principle as naming the Atualfo, the Champagne mango. It's all allowed.

[Tropicdude]

Thanks for the information and links, I was having fun just looking at the patented trees in there.

Not many mangoes that are patented, and I have never heard of any of them,  FP1, FP2, Leopold, B74, Ed Mitchel.

I like that there is a full description in the text.

By accident I came across a couple of other fruits, a seedless avocado, and a papaya with a hint taste of coconut and mango hmmmm,

[fyliu]

Here's the Golden Gate CRFG's list of current and expiring patents for common varieties
http://www.crfg.org/chapters/golden_gate/Expired%20Plant%20Patents%20allowed%202012.pdf

To do it yourself go to this page: http://patft.uspto.gov/netahtml/PTO/search-adv.htm
query for something like "ttl/apple" without quotes.

[Mike T]

A classic example of plant breeder rights and patented varieties exists with achachas.This name is patented in australia by a company that has plantations with 1000's of trees and I am led to believe they invented the shortened name achacha.After many years of negotiating with Bolivia a superior seedling grown type was released and patented in Australia.No one else can market under the name achacha or grow their cultivar.I suppose they are confident no one will find a type to challenge it and come up with an alternative name in this country.One company corners the entire market at the moment.Hobbyists plant them and don't know if it is legal in this country to do so.I don't know if the same cultivar could be commercially planted or even legally planted by hobbyists in the US and other countries.

[fruitlovers]

A classic example of plant breeder rights and patented varieties exists with achachas.This name is patented in australia by a company that has plantations with 1000's of trees and I am led to believe they invented the shortened name achacha.After many years of negotiating with Bolivia a superior seedling grown type was released and patented in Australia.No one else can market under the name achacha or grow their cultivar.I suppose they are confident no one will find a type to challenge it and come up with an alternative name in this country.One company corners the entire market at the moment.Hobbyists plant them and don't know if it is legal in this country to do so.I don't know if the same cultivar could be commercially planted or even legally planted by hobbyists in the US and other countries.

Mike, this whole situation is a ruse. There was no superior seedling selection. This company merely wanted to have a monopoly over this species in Australia. It's not allowed to take out a patent on an entire species so they merely pretended to have selected something superior. They did go through the steps to get permission from Bolivian government, probably by paying some official a hefty bribe. Yes the name is invented. The original name is achachairu and they merely shortened it.

[Mike T]

FL Aha I should have known and this supposedly superior type seems to be identical in all respects to what I have seen published on them.They have not gained the market acceptance to match the plantation size or price asked and they are reducing in cost pretty quickly around the markets.

[fruitlovers]

FL Aha I should have known and this supposedly superior type seems to be identical in all respects to what I have seen published on them.They have not gained the market acceptance to match the plantation size or price asked and they are reducing in cost pretty quickly around the markets.

They admit right on their application that the supposed selected selection from seed was developed in Bolivia, not by them. They also say on their application that seeds are polyembryonic so fairly true from seed. Yet cliam this selection was made from seed? I know a chap in Australia that tried to challenge their application, but in order to do it would have had to put up several hundred dollars, and so he dropped it.

[BMc]

Yah, its strange. The one thing the achacha group has done is made seeds very easily available to backyard growers. So much so they volunteer themselves constantly in my yard.
Another strange one is the mango group in the NT that has patented 'their selection' of maha chanok.

[murahilin]

A classic example of plant breeder rights and patented varieties exists with achachas.This name is patented in australia by a company that has plantations with 1000's of trees and I am led to believe they invented the shortened name achacha.After many years of negotiating with Bolivia a superior seedling grown type was released and patented in Australia.No one else can market under the name achacha or grow their cultivar.I suppose they are confident no one will find a type to challenge it and come up with an alternative name in this country.One company corners the entire market at the moment.Hobbyists plant them and don't know if it is legal in this country to do so.I don't know if the same cultivar could be commercially planted or even legally planted by hobbyists in the US and other countries.

You can't patent a name. They likely trademarked the name Achacha.

The way they can block others from growing their own cultivar is because if they successfully patented their cultivar, a seedling will have the genetic material from their patented cultivar and therefore be infringing on their genetic material. To get around that growing your own cultivar restriction you would simply have to import seeds from anywhere else in the world.

Yup, we can plant the exact same cultivar here in US because it is not patented in the US. It's the same reason we could get budwood and graft from your superior Australian Annonas without any problems here.

[murahilin]

Yah, its strange. The one thing the achacha group has done is made seeds very easily available to backyard growers. So much so they volunteer themselves constantly in my yard.
Another strange one is the mango group in the NT that has patented 'their selection' of maha chanok.

I've searched the Australian patent website and I was unable to find any mention of the patented maha chanok selection. Is there another name the cultivar is going under?

I remember a while back you mentioned someone Trademarking the name Mahachanok and King Thai. Is that what you are referring to?

[Cookie Monster]

It was actually an honest mistake. Where they went wrong was taking so long to rectify the situation. According to Dr Crane, the tree was labelled Edward x Kent #14 at the TREC grove when Pine Island stumbled upon it. Neither Dr Crane nor Eric of Pine Island realized that it had already been named. Pine Island requested to name it 'Tebow' and was given permission by TREC.

Evidently there are no restrictions on changing the name of a patented mango variety.  i.e.' Young' and the stunt that PIN pulled.

How did that happen anyway?

[lkailburn]

I'm glad this got brought up. I want to try my hand at grafting onto some mango seedlings this summer but don't know if someone sending me scion wood would violate somebody's patent out there.

-Luke

[adiel]

I'm glad this got brought up. I want to try my hand at grafting onto some mango seedlings this summer but don't know if someone sending me scion wood would violate somebody's patent out there.

-Luke

Luke, I would not worry about this.  The mangos that have patent are only a select few and are an attempt at some greedy person trying to claim that his seedling is the best thing since sliced bread.  What I have noticed is (of the handful of patented mangos) is that most of them are mangos that are not even been cultivated commercially.  All the good scions that you are looking for (Maha Chanok, lemon zest, dot, cushman, edward, kent, etc) are not patented so no need to worry about that.  Happy grafting.   

[lkailburn]

I'm glad this got brought up. I want to try my hand at grafting onto some mango seedlings this summer but don't know if someone sending me scion wood would violate somebody's patent out there.

-Luke

Luke, I would not worry about this.  The mangos that have patent are only a select few and are an attempt at some greedy person trying to claim that his seedling is the best thing since sliced bread.  What I have noticed is (of the handful of patented mangos) is that most of them are mangos that are not even been cultivated commercially.  All the good scions that you are looking for (Maha Chanok, lemon zest, dot, cushman, edward, kent, etc) are not patented so no need to worry about that.  Happy grafting.   

 

-Luke

[murahilin]

Luke, I would not worry about this. The mangos that have patent are only a select few and are an attempt at some greedy person trying to claim that his seedling is the best thing since sliced bread.  What I have noticed is (of the handful of patented mangos) is that most of them are mangos that are not even been cultivated commercially.  All the good scions that you are looking for (Maha Chanok, lemon zest, dot, cushman, edward, kent, etc) are not patented so no need to worry about that.  Happy grafting.   

I think you're very wrong in assuming that those patenting cultivars are doing it because of greed. That really isn't a nice thing to assume at all. Some people have worked very hard to develop improved cultivars and they should be rewarded for their hard work by having the ability to have exclusive rights to sell and license their trees or any other product that they patent.

[jason (palo alto)]

Plant patents should be respected, the effort that typically goes into breeding costs $$$$ and in order to continue their breeding programs they need to make back that $$$$ with the small $ they get from selling the patented varieties. Everyone wins with plant patents because the breeders continue to have a means to recoup R&D costs and the public gets superior varieties.
Murahilin already posted a link to my US plant patent spreadsheet above but looking at it you will notice few subtropicals. I think this is due to most of the US being unable to grow subtropicals along with an undiscerning public which still thinks a Tommy Atkins is what a mango is supposed to be.
In general few of the patented plants are even consumer varieties anyways, they are often commercial bred varieties optimized to commercial growing (ships well, even ripening period, little blemishing, etc.) not to home growing (taste!).

Now as far as anyone enforcing the plant patents... nobody is going to come to your home over you reproducing a single patented variety, its only worth it to go after commercial growers and sellers. I remember that some people here in the CRFG have wanted to graft on some patented scions and were willing to pay the patent owner but they weren't setup to take money from a home grower.

[fyliu]

Yes, a way to pay patent owers for scions grafted would be good. Some of us don't have the orchard space to grow more trees so grafting to existing ones is more feasible. I'm doing some of that but not nearly to the level of the 101-in-1 citrus of Joe Real.

[BMc]

Yah, its strange. The one thing the achacha group has done is made seeds very easily available to backyard growers. So much so they volunteer themselves constantly in my yard.
Another strange one is the mango group in the NT that has patented 'their selection' of maha chanok.

I've searched the Australian patent website and I was unable to find any mention of the patented maha chanok selection. Is there another name the cultivar is going under?

I remember a while back you mentioned someone Trademarking the name Mahachanok and King Thai. Is that what you are referring to?

No, a big plantation in the NT has trademarked their MC. Makes 0 sense though. heres a link http://www.tousgarden.com.au/primary-produce/tous-garden-maha-chinook

the other place, birdwood - an exotic fruit mecca for many years - doesnt trademark them, they've just changed the name from mahachanok to king thai to try to gain some level of market familiarity.

[murahilin]

I've searched the Australian patent website and I was unable to find any mention of the patented maha chanok selection. Is there another name the cultivar is going under?

I remember a while back you mentioned someone Trademarking the name Mahachanok and King Thai. Is that what you are referring to?

No, a big plantation in the NT has trademarked their MC. Makes 0 sense though. heres a link http://www.tousgarden.com.au/primary-produce/tous-garden-maha-chinook

the other place, birdwood - an exotic fruit mecca for many years - doesnt trademark them, they've just changed the name from mahachanok to king thai to try to gain some level of market familiarity.

http://tropicalfruitforum.com/index.php?topic=784.msg9527#msg9527

In the post I liked to, we've had the same discussion pretty much regarding the TM of the Maha Chanok and King Thai and I explained why the Maha Chanok tm was likely ineffective. According to Australian law, an original variety name can not be trademarked.