New Patents For Zills Trees

[Mr. Clean]

Does anyone know whether Zills has additional patent applications pending for the other new varieties of mango trees?  Pineapple Pleasure, Sweet Tart, Pina Colada, Sunrise, Lemon Zest, and Harvest Moon?

[Guanabanus]

I doubt they would attempt to patent them after already having sold many into the public domain.

[murahilin]

I doubt they would attempt to patent them after already having sold many into the public domain.

Also, with the CC they had patent pending on all of the labels while they did not have it on any of the others.

[mikesid]

Once, or if the Orange Sherbert is released and patented will the patent apply to the polyembryonic seed or is that not considered part of the patent? In other word, will it be legal to grow and graft the result of the poly seed without fear of breaking patent laws?

[murahilin]

Once, or if the Orange Sherbert is released and patented will the patent apply to the polyembryonic seed or is that not considered part of the patent? In other word, will it be legal to grow and graft the result of the poly seed without fear of breaking patent laws?

The Orange Sherbert can't be patented at this point in time. One reason is that the fruit is poly and it has been sold to the public for a few years now allowing for seedlings to be grown that may be genetically identical. Another possible reason, which I am not exactly sure if this would preclude it from being patented, would be that the tree was shared to certain people including Walter Zill. If I remember correctly there is a one year time limit after something has been released that a patent can be filed. The question would be, would sharing the tree to his brother be considered releasing it. I haven't bothered to look it up because I don't think there is an intention to patent it.

[mikesid]

Once, or if the Orange Sherbert is released and patented will the patent apply to the polyembryonic seed or is that not considered part of the patent? In other word, will it be legal to grow and graft the result of the poly seed without fear of breaking patent laws?

The Orange Sherbert can't be patented at this point in time. One reason is that the fruit is poly and it has been sold to the public for a few years now allowing for seedlings to be grown that may be genetically identical. Another possible reason, which I am not exactly sure if this would preclude it from being patented, would be that the tree was shared to certain people including Walter Zill. If I remember correctly there is a one year time limit after something has been released that a patent can be filed. The question would be, would sharing the tree to his brother be considered releasing it. I haven't bothered to look it up because I don't think there is an intention to patent it.

I did read the one year time limit if a plant is released to the public but wasn't sure if it included fruit..or, like you said, if his brother is considered 'the public'...but the fact the seeds are poly should definitely outweigh whether or not the plant itself is released...when I spoke with Walter and asked about the Orange Sherbert he told me Gary still had plans on patenting it...but Walter could be mistaken....as he told me the patent on the CC didn't apply to grafting it... he stated the patent only applied to international sales of plant material and fruit...but I found out he was wrong..the only way it could be grafted outside of Zill's HPP if there is a breeding program being under taken and a Breeders Exemption must be applied for and granted...

[Cookie Monster]

Yah, very highly doubtful. You should be able to graft them without issue.

I was told that the Fruit Punch was going to be patented.

As for the Orange Sherbet, I was told that Gary was potentially seeking some sort of exclusive contract with a grower, which (excuse my ignorance) sounds different than a patent.

I planted out the seeds to my OS and now have little Orange Sherbetlettes :-).

[Mr. Clean]

Once, or if the Orange Sherbert is released and patented will the patent apply to the polyembryonic seed or is that not considered part of the patent? In other word, will it be legal to grow and graft the result of the poly seed without fear of breaking patent laws?

The Orange Sherbert can't be patented at this point in time. One reason is that the fruit is poly and it has been sold to the public for a few years now allowing for seedlings to be grown that may be genetically identical. Another possible reason, which I am not exactly sure if this would preclude it from being patented, would be that the tree was shared to certain people including Walter Zill. If I remember correctly there is a one year time limit after something has been released that a patent can be filed. The question would be, would sharing the tree to his brother be considered releasing it. I haven't bothered to look it up because I don't think there is an intention to patent it.

You are correct about the First Sale Doctrine.  Since it is within one year of the date of filing the patent application, the application could be timely filed and still be in process by the US Patent & Trademark Office.  But I doubt this is the case..  Dealings with his brother arguably is continued research, which wouldn't be subject to the First Sale Doctrine.  Only time will tell.  Patenting is expensive, so Gary would need to see a potential to recovery his investment, which may discourage patenting varieties Gary does not see widespread acceptance.

[mikesid]

Once, or if the Orange Sherbert is released and patented will the patent apply to the polyembryonic seed or is that not considered part of the patent? In other word, will it be legal to grow and graft the result of the poly seed without fear of breaking patent laws?

The Orange Sherbert can't be patented at this point in time. One reason is that the fruit is poly and it has been sold to the public for a few years now allowing for seedlings to be grown that may be genetically identical. Another possible reason, which I am not exactly sure if this would preclude it from being patented, would be that the tree was shared to certain people including Walter Zill. If I remember correctly there is a one year time limit after something has been released that a patent can be filed. The question would be, would sharing the tree to his brother be considered releasing it. I haven't bothered to look it up because I don't think there is an intention to patent it.

You are correct about the First Sale Doctrine.  Since it is within one year of the date of filing the patent application, the application could be timely filed and still be in process by the US Patent & Trademark Office.  But I doubt this is the case..  Dealings with his brother arguably is continued research, which wouldn't be subject to the First Sale Doctrine.  Only time will tell.  Patenting is expensive, so Gary would need to see a potential to recovery his investment, which may discourage patenting varieties Gary does not see widespread acceptance.

I think the real question is,does sale of fruit constitute plant material and also do poly seeds represent sale of that plant material? If so, are poly seeds considered patentable? and if so,  since they have already been sold and possibly grown for over a year then the patent can't hold to those seedlings....

[mikesid]

Once, or if the Orange Sherbert is released and patented will the patent apply to the polyembryonic seed or is that not considered part of the patent? In other word, will it be legal to grow and graft the result of the poly seed without fear of breaking patent laws?

The Orange Sherbert can't be patented at this point in time. One reason is that the fruit is poly and it has been sold to the public for a few years now allowing for seedlings to be grown that may be genetically identical. Another possible reason, which I am not exactly sure if this would preclude it from being patented, would be that the tree was shared to certain people including Walter Zill. If I remember correctly there is a one year time limit after something has been released that a patent can be filed. The question would be, would sharing the tree to his brother be considered releasing it. I haven't bothered to look it up because I don't think there is an intention to patent it.

You are correct about the First Sale Doctrine.  Since it is within one year of the date of filing the patent application, the application could be timely filed and still be in process by the US Patent & Trademark Office.  But I doubt this is the case.. Dealings with his brother arguably is continued research, which wouldn't be subject to the First Sale Doctrine.  Only time will tell.  Patenting is expensive, so Gary would need to see a potential to recovery his investment, which may discourage patenting varieties Gary does not see widespread acceptance.

Since his brother doesn't have a breeding program involving OS then I don't think that this can be considered 'Plant Breeder's rights(which are used to improve a variety)...also they were never applied for and his brother, Walter, has no intention of breeding it...also Walter Zill isn't part of Zill HPP as far as I know...also, are seedlings considered identical as far plant material goes, or is it just considered 'a seedling of'?....

[FRUITBOXHERO]

If they did get them patented would it stop ANY backyard grower from grafting & or planting the seeds? I would think not. Hell I'm willing to bet that some backyard growers would even sell them, Just my opinion and I could be wrong!

[mikesid]

If they did get them patented would it stop ANY backyard grower from grafting & or planting the seeds? I would think not. Hell I'm willing to bet that some backyard growers would even sell them, Just my opinion and I could be wrong!

I don't think anybody would be foolish enough to sell a patented tree they grafted...Gary doesn't seem like someone who would allow that if he found out...technically you can't even take the budwood from your purchased patented tree and graft onto another one of your trees as I was informed...

[Guanabanus]

Last month's Supreme Court decision against patentability of normally-existing human genes should also inform this discussion.  Discovery does not make anything patentable.  Only newly-created genes can be patented.

In the case of these patented fruit tree varieties, only the entire combination of genes, the hybrid, taken inseparably as a whole, can be patented;  the individual genes cannot be rightfully patented.  Any new combination, such as a seed resulting from open pollination, or a seed resulting from purposeful breeding with another plant, is not correctly included under patent protection.
Any claim to the contrary is over-reaching, and challengeable.

NO VEGETATIVE PROPAGATION (i.e. Cloning) may legally be done of a patented plant without documented permission--- not even one in your yard.  Doing so would constitute thieving of royalties.

[Guanabanus]

In a poly-embryonic seed, most of the emerging seedlings are clones of the mother plant.  As these were produced by an act of nature, it is debatable---a grey area, as to whether they should be prohibited from germinating (!) by the patent.  It may well be prudent to not let them survive.

However, the "off-type" seedling, produced by pollination, which is visibly different from the clones, should be fair game to plant.

[Kay]

interesting, i didnt realize there was so much legal stuff involved.  is there somewhere one can look for a list fo patented plants/varieties?

[fruitlovers]

If they did get them patented would it stop ANY backyard grower from grafting & or planting the seeds? I would think not. Hell I'm willing to bet that some backyard growers would even sell them, Just my opinion and I could be wrong!

Technically if you propagate patented material you are breaking the law. But if you are just using it for your own purposes and not selling it who's to know and who's to care? What often happens is that backyard growers will propagate patented material and just rename the cultivar and sell it under a new bogus name. After the renaming it's very difficult to prove that it's in fact identical without costly DNA testing. So there's many ways these laws are skirted.

[strkpr00]

Can anyone point in the direction where a patent (expiration) list is available? Who wants unneeded litigation?

[Mr. Clean]

Can anyone point in the direction where a patent (expiration) list is available? Who wants unneeded litigation?

http://www.uspto.gov/patents/law/patent_term_calculator.jsp#heading-1


Issued patents also have maintenance fees due at different intervals, which if not paid can invalidate the patent.