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Author Topic: Steps to securing fruit Patent  (Read 5708 times)

Viking Guy

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Steps to securing fruit Patent
« on: March 13, 2015, 07:25:42 PM »
Ok, so we've established that the Heirloom highbush blueberry variety I have may be one of a kind--and also seems to be what many people want--especially in Florida where highbush has its issues.

I am willing to start air layering this for all of you, but I want to protect it.

I don't really know the steps involved in doing so, and hopefully you can help me patent it properly and honor the name of the man who saved it from death after WW2.

I want to give the variety a name and make sure it is secured.  Thanks.
-Adam

ben mango

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Re: Steps to securing fruit Patent
« Reply #1 on: March 14, 2015, 10:12:47 AM »
i know one guy who's patenting a variety of pineapple he made. i just know that it takes years

ClayMango

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Re: Steps to securing fruit Patent
« Reply #2 on: March 14, 2015, 12:43:37 PM »
Ok, so we've established that the Heirloom highbush blueberry variety I have may be one of a kind--and also seems to be what many people want--especially in Florida where highbush has its issues.

I am willing to start air layering this for all of you, but I want to protect it.

I don't really know the steps involved in doing so, and hopefully you can help me patent it properly and honor the name of the man who saved it from death after WW2.

I want to give the variety a name and make sure it is secured.  Thanks.

I think it will be patent pending for a  few years. but no one can claim the  variety once in motion...I think...maybe  wrong
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fyliu

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Re: Steps to securing fruit Patent
« Reply #3 on: March 14, 2015, 02:14:23 PM »
You would have to describe it's characteristics. Maybe what's different about it (hardy in FL). See the patent applications for other fruits. Probably get a patent lawyer that knows what he's doing?

For product patents there's a waiting period for others to contest it, saying it's already widely available. This was what happened with 'Timotayo' mango. He couldn't patent it because he gave it to a nursery and they sold a bunch of plants to the public. So you might not want to distribute it widely yet if you really want to patent it. Or maybe there's some "patent pending" label you can put on, I'm not sure.

The other thing you can do is register it as a named cultivar. It doesn't give you any royalties when nurseries sell it. CRFG used to do registration for members. I'm sure there are fruit organizations in FL that's willing to do the same?

fyliu

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Re: Steps to securing fruit Patent
« Reply #4 on: March 14, 2015, 02:20:11 PM »
I heard that blueberry in northern states are tall hedges and the size of quarters. It's us in southern states that have to grow the short ones with smaller fruit. It will be a winner if it does well in the south.

ClayMango

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Re: Steps to securing fruit Patent
« Reply #5 on: March 14, 2015, 03:32:43 PM »
I heard that blueberry in northern states are tall hedges and the size of quarters. It's us in southern states that have to grow the short ones with smaller fruit. It will be a winner if it does well in the south.


??? I thought most Southern High Bush varieties grow to an average of 4-6 feet from every plant description i've  found.
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Viking Guy

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Re: Steps to securing fruit Patent
« Reply #6 on: March 14, 2015, 05:57:19 PM »
I heard that blueberry in northern states are tall hedges and the size of quarters. It's us in southern states that have to grow the short ones with smaller fruit. It will be a winner if it does well in the south.


??? I thought most Southern High Bush varieties grow to an average of 4-6 feet from every plant description i've  found.

Yes, the BIG issue with highbush in Florida is failure to resist nematodes and rot.

As a result, a market couldn't get established down here.

However, THIS blueberry high'er'bush variety, which one of my wife's ancestors created from a seed a couple centuries ago in Georgia, was transplanted to Defuniak Springs, FL, where it lived out much of its duration, and was later transplanted and brought to Fairhope, AL, by my wife's late Great Uncle.  He kept a large row of them on his property that he had propagated, but he refused to share anything but berries.

In his elderly age, my wife took care of him and he awarded her with one of the blueberry trees (considered to him "a big deal" as the war veteran he was).

After he passed, his farmland sold into a subdivision, and the developers cut down, killed and burned every rare and heirloom fruit tree on his property he spent the latter part of his life developing.

As far as we know, the blueberry we have is the only known one of its kind alive, and it grows without any care in the deep south--including Florida.  No known pests, and proven tolerancy between zones 7-9, and I'm sure could handle a zone or two in either direction.  Self fruitful, and ultra prolific with giant, delicious berries.  Also, it grows way beyond 10'--mine having reached 18' (at least until the berry harvest weights it down to weeping mode--at which point it's only 12' high.  Only, haha.

Anyhow, we are likely to name it after her uncle, and will certainly try to get a patent and share this 1 of a kind wonder of nature with others.  Just need to follow all the right steps.

And trust me, you've never tasted a blueberry as pure as this one.  I've tried to find one that came close, and notta.  They are either too sweet or tart.  This one is right down the middle.  :D

« Last Edit: March 14, 2015, 06:10:19 PM by Viking Guy »
-Adam

ClayMango

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Re: Steps to securing fruit Patent
« Reply #7 on: March 14, 2015, 06:23:23 PM »
I heard that blueberry in northern states are tall hedges and the size of quarters. It's us in southern states that have to grow the short ones with smaller fruit. It will be a winner if it does well in the south.


??? I thought most Southern High Bush varieties grow to an average of 4-6 feet from every plant description i've  found.

Yes, the BIG issue with highbush in Florida is failure to resist nematodes and rot.

As a result, a market couldn't get established down here.

However, THIS blueberry high'er'bush variety, which one of my wife's ancestors created from a seed a couple centuries ago in Georgia, was transplanted to Defuniak Springs, FL, where it lived out much of its duration, and was later transplanted and brought to Fairhope, AL, by my wife's late Great Uncle.  He kept a large row of them on his property that he had propagated, but he refused to share anything but berries.

In his elderly age, my wife took care of him and he awarded her with one of the blueberry trees (considered to him "a big deal" as the war veteran he was).

After he passed, his farmland sold into a subdivision, and the developers cut down, killed and burned every rare and heirloom fruit tree on his property he spent the latter part of his life developing.

As far as we know, the blueberry we have is the only known one of its kind alive, and it grows without any care in the deep south--including Florida.  No known pests, and proven tolerancy between zones 7-9, and I'm sure could handle a zone or two in either direction.  Self fruitful, and ultra prolific with giant, delicious berries.  Also, it grows way beyond 10'--mine having reached 18' (at least until the berry harvest weights it down to weeping mode--at which point it's only 12' high.  Only, haha.

Anyhow, we are likely to name it after her uncle, and will certainly try to get a patent and share this 1 of a kind wonder of nature with others.  Just need to follow all the right steps.

And trust me, you've never tasted a blueberry as pure as this one.  I've tried to find one that came close, and notta.  They are either too sweet or tart.  This one is right down the middle.  :D


Please  Viking...Please...This  Variety deserves to have it's place in this World, The lineage is crazy!!!!! Do whatever it takes to spread your Families history, a  gift to the world.... Patent that Baby!!!!!!
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Viking Guy

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Re: Steps to securing fruit Patent
« Reply #8 on: March 14, 2015, 07:02:40 PM »
I totally agree, Clay.

I want you all to put this to the test and enjoy it as well.
-Adam

fyliu

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Re: Steps to securing fruit Patent
« Reply #9 on: March 15, 2015, 09:30:32 PM »
Adam, that sounds good. Yeah, 10 ft is what I heard northern blueberries grow to. Aren't there members here from northern states that can tell us about their blueberry walls? That's what I meant when I said "hedge". Im thinking they call it southern highbush to trick us into believing it's how tall it naturally gets. I'm a southerner so I'm looking forward to the day when I can grow my own blueberry hedge here.

FrankDrebinOfFruits

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Re: Steps to securing fruit Patent
« Reply #10 on: March 18, 2015, 05:28:49 PM »
Before you patent, determine the market capacity, return and distribution.

The market capacity is the amount of money to be made. How many people will buy it and how desirable it will be. How much will a customer be willing to pay for a select variety over other varieties.

Return is how many would have to be sold to pay for the patent cost and then be profitable.

Distribution would either be yourself or marketed by a popular distributing nursery. This would lead to market capacity and return.

I have heard from many people that patented varieties that they never made money. Fortune and glory is often desirable, but maybe its better to find satisfaction in glory (and just give it a name and find pride in its popularization).

ClayMango

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Re: Steps to securing fruit Patent
« Reply #11 on: March 18, 2015, 06:18:02 PM »
Before you patent, determine the market capacity, return and distribution.

The market capacity is the amount of money to be made. How many people will buy it and how desirable it will be. How much will a customer be willing to pay for a select variety over other varieties.

Return is how many would have to be sold to pay for the patent cost and then be profitable.

Distribution would either be yourself or marketed by a popular distributing nursery. This would lead to market capacity and return.

I have heard from many people that patented varieties that they never made money. Fortune and glory is often desirable, but maybe its better to find satisfaction in glory (and just give it a name and find pride in its popularization).

The creator of the Hass Avocado, didnt turn a nice profit until after a he died I think, decades later.
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KarenRei

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Re: Steps to securing fruit Patent
« Reply #12 on: March 18, 2015, 09:24:08 PM »
Sigh.... patents...   :(
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Re: Steps to securing fruit Patent
« Reply #13 on: March 18, 2015, 10:34:33 PM »
Ya seriously. I don't think plants should be patented
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Viking Guy

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Re: Steps to securing fruit Patent
« Reply #14 on: March 19, 2015, 12:16:06 AM »
Before you patent, determine the market capacity, return and distribution.

The market capacity is the amount of money to be made. How many people will buy it and how desirable it will be. How much will a customer be willing to pay for a select variety over other varieties.

Return is how many would have to be sold to pay for the patent cost and then be profitable.

Distribution would either be yourself or marketed by a popular distributing nursery. This would lead to market capacity and return.

I have heard from many people that patented varieties that they never made money. Fortune and glory is often desirable, but maybe its better to find satisfaction in glory (and just give it a name and find pride in its popularization).

I'm not worried about money or profit.  We own a profitable business already.  Mostly want to preserve the name of my wife's great uncle for keeping this variety alive.
-Adam

starling1

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Re: Steps to securing fruit Patent
« Reply #15 on: March 19, 2015, 04:05:18 AM »


You will not be able to apply for a patent in respect to a living organism. You will need to apply for a PBR or whatever the American equivalent is, which is going to cost quite a bit in all probability as patent Law is a very niche specialization and is extremely lucrative. PBR's are necessary- some cultivars represent enormous amounts of time and investment and their creators should be able to profit from this labor the same way any worker in any industry does.

http://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/general-information-about-35-usc-161

stuartdaly88

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Re: Steps to securing fruit Patent
« Reply #16 on: March 19, 2015, 06:03:16 AM »
In respect of plant patents Im very interested to know how illigal(in principal) is it to take cuttings of friends plants?
Iv taken cuttings from many peoples hybrid tea roses I also make copies for my own garden and I always thought it was only illegal if you actually try to sell and make a profit off of it? I buy one and clone rather as they are really expensive!

Also then seeds even if extremely similar to parent named fruit plant would be completely ok to sell or distribute?
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Viking Guy

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Re: Steps to securing fruit Patent
« Reply #17 on: March 19, 2015, 09:04:25 AM »
Did a little research last night on obtaining government patents.  Was surprised to learn that one of the rules of patenting a plant was having made a successful propagation of it.  You can then apply for a patent on the successfully created cutting provided it is a clone of the mother plant, and have proof it was derived from a plant you've cultivated.  Interesting indeed.

The cost doesn't seem to be as much as everyone let's on.  Maybe only a few thousand from what I see, with regular maintenance.  No different than 20 yr patents we've gotten for our company.

Besides, if I wanted to convert if to a for profit item, it wouldn't be that hard.  We've been offered a LOT of money for this blueberry over the years.  People really seem to want it.

I just want to be able to name it properly, and prevent others from changing the name to.something else.  If I could achieve that without a patent, then I'd be fine to do so.  As for what I read, though, it seems that naming a plant is part of the patent process.

I'm curious about this journey.  I will begin by doing some air layering and keeping everyone in the loop on the3 progress meanwhile.  :)
-Adam

murahilin

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Re: Steps to securing fruit Patent
« Reply #18 on: March 19, 2015, 12:49:28 PM »


You will not be able to apply for a patent in respect to a living organism. You will need to apply for a PBR or whatever the American equivalent is, which is going to cost quite a bit in all probability as patent Law is a very niche specialization and is extremely lucrative. PBR's are necessary- some cultivars represent enormous amounts of time and investment and their creators should be able to profit from this labor the same way any worker in any industry does.

http://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/general-information-about-35-usc-161


The link you provided seems to contradict your first sentence. Plant patents are available in the US.

murahilin

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Re: Steps to securing fruit Patent
« Reply #19 on: March 19, 2015, 12:52:31 PM »
You would have to describe it's characteristics. Maybe what's different about it (hardy in FL). See the patent applications for other fruits. Probably get a patent lawyer that knows what he's doing?

For product patents there's a waiting period for others to contest it, saying it's already widely available. This was what happened with 'Timotayo' mango. He couldn't patent it because he gave it to a nursery and they sold a bunch of plants to the public. So you might not want to distribute it widely yet if you really want to patent it. Or maybe there's some "patent pending" label you can put on, I'm not sure.

The other thing you can do is register it as a named cultivar. It doesn't give you any royalties when nurseries sell it. CRFG used to do registration for members. I'm sure there are fruit organizations in FL that's willing to do the same?

I am not a patent lawyer, and I only took one patent law class in law school so please do not rely on anything I say and you should contact a patent lawyer if you have any questions.

With that being said, I think fylui has described the exact reason why you would not be able to patent your blueberry. You stated that "In his elderly age, my wife took care of him and he awarded her with one of the blueberry trees (considered to him "a big deal" as the war veteran he was)."



DuncanYoung

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Re: Steps to securing fruit Patent
« Reply #20 on: March 19, 2015, 07:30:58 PM »
I just want to be able to name it properly, and prevent others from changing the name to.something else.  If I could achieve that without a patent, then I'd be fine to do so.  As for what I read, though, it seems that naming a plant is part of the patent process.

Good luck with that part!  re: Young/Tebow

starling1

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Re: Steps to securing fruit Patent
« Reply #21 on: March 19, 2015, 07:40:47 PM »


You will not be able to apply for a patent in respect to a living organism. You will need to apply for a PBR or whatever the American equivalent is, which is going to cost quite a bit in all probability as patent Law is a very niche specialization and is extremely lucrative. PBR's are necessary- some cultivars represent enormous amounts of time and investment and their creators should be able to profit from this labor the same way any worker in any industry does.

http://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/general-information-about-35-usc-161


The link you provided seems to contradict your first sentence. Plant patents are available in the US.


Patents on Plants, from what I could glean from the link, are not qualified in the same way as something like an Engineering patent. It's not the same per se. In Australia, plant patents are referred to as PBR. There is a US equivalent of this that is similarly abbreviated to PVPA (plant variety protection Act 1970). I assume this variety would fall within the scope of that, unless there is another process of intellectual property law which applies and knowing how needlessly bloated bureaucratic  processes are, there probably is.

I know very little about Patent Law Also. I can tell you that it's exceedingly difficult stuff to think about; a friend of mine at UQ wants to specialize in patents and is currently undertaking dual degrees in Engineering and Law to be able to do that effectively. His life is pretty much studying, eating and sleeping and he appears to be generally predisposed to suicide a lot of the time really.

The fact that Viking didn't breed the variety itself doesn't necessarily  invalidate his claim. My guess is that this won't really matter--however, if the deceased breeders get wind that you're profiting from it without their consent, he might be in for a long and exhaustive legal battle at some point in the future. Wherever money is involved, refer to Murphy's Law.

If it were me, I'd square it with everybody involved first. A little informal equanimity and equitability  goes a long way.
« Last Edit: March 19, 2015, 07:47:13 PM by starling1 »

Viking Guy

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Re: Steps to securing fruit Patent
« Reply #22 on: March 19, 2015, 11:10:40 PM »
That shouldn't be an issue since it came from a seedling out of my wife's family, out of which only her mother, 1 uncle and 2 sisters still exist and had nothing to do with it.

There won't be any to dispute it, and it has met the standard requirements of being in our sole possession of longer than 1 year.

-Adam

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Re: Steps to securing fruit Patent
« Reply #23 on: March 20, 2015, 08:19:49 AM »
PBR's are necessary- some cultivars represent enormous amounts of time and investment and their creators should be able to profit from this labor the same way any worker in any industry does.

http://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/general-information-about-35-usc-161


Well, from a breeder standpoint, its clear that they should be able to patent their creations, this just isn't the public interest.
Moreover plant breeders breeding plant to patent them do create a system where plant patenting is necessary. If we, collectively, would decide that plants can't be patented, patent wouldn't be necessary anymore neither as form of compensation because no private owner would breed plant (or they would just breed them "for the glory") and those who have them would share them freely. This wouldn't eliminate the research on new plant clones because the main drive for that research is the desire for improved cultivars (the existence of a market for new cultivars) and you can't eliminate anything where there's a market (think to drug or prostitution, they do exist because a request for that stuff exists). In that scenario research would be brought forward from school or universities, instead than private owner.

Viking guy, AFAIK (and i just took a brief class in plants patents, so I'm not in any way an expert) if the plant has been already object of commerce of it is an heirloom variety (even if virtually disappeared or unknown) you can't patent it. Well, at least for the European law that, as i understand it, is pretty conservative on this point. You need, to patent a plant, that the clone is NEW; and what this "new" means is up to your legal system. Here it does means that the plant shouldn't have been subjected to commerce for a number of years, in any form.
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Viking Guy

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Re: Steps to securing fruit Patent
« Reply #24 on: March 20, 2015, 11:33:13 AM »
Then the question is, how do we go about labeling it as an heirloom variety and fixing it as such?

See, I have no desire to patent it for profit.  I just assumed that is the only way to make a name for it.  If I can create a name/variety for it as heirloom or other, then that is precisely what we are wanting to accomplish.  Although, US patent law does clearly state that creation of a new species can be the result of growing from a seed, but you must propagate the plant successfully at least once.
-Adam

 

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