Author Topic: Illegal or Not?? Mango Scions  (Read 1951 times)

thesimsdude

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Illegal or Not?? Mango Scions
« on: March 02, 2023, 11:01:18 PM »
Hello, would it be illegal to sell scions (not plants) of a patented variety of mango such as those of Zills nurseries (coco creme, etc...)

drymifolia

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Re: Illegal or Not?? Mango Scions
« Reply #1 on: March 03, 2023, 01:33:12 AM »
Hello, would it be illegal to sell scions (not plants) of a patented variety of mango such as those of Zills nurseries (coco creme, etc...)

This is not legal advice, but as far as I understand it, either propagating or selling material that can be used for propagating a patented plant would be a violation of their patent rights. That's a matter of civil liability, not a crime, at far as I know. So they could sue you or send threatening letters, or both.

JR561

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Re: Illegal or Not?? Mango Scions
« Reply #2 on: March 03, 2023, 05:03:52 AM »
Maybe Im not looking in the right place but I only see C-20 (guessing this is Coconut Cream) is patented by Gary. 

Anyone see others?

manfromyard

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Re: Illegal or Not?? Mango Scions
« Reply #3 on: March 03, 2023, 07:27:35 AM »
Hello, would it be illegal to sell scions (not plants) of a patented variety of mango such as those of Zills nurseries (coco creme, etc...)

This is not legal advice, but as far as I understand it, either propagating or selling material that can be used for propagating a patented plant would be a violation of their patent rights. That's a matter of civil liability, not a crime, at far as I know. So they could sue you or send threatening letters, or both.

" Section § 506 of the Copyright Act authorizes criminal prosecution for a party who willfully infringes a copyright when the infringement:

    is for purposes of commercial advantage or private financial gain,
    results in the production of over $1000 worth of illegal copies; or
    involves a work intended to be commercially distributed (example: an unreleased film or music album).

Penalties for criminal copyright infringement can be found at 18 U.S.C. § 2319. Fines for criminal copyright infringement range from a minimum few thousand dollars worth up into the millions. Criminal copyright infringement penalties can even extend to to prison sentences of up to ten years in federal prison."

You can definitely go to prison for this violation. Will you? Unlikely, but I would never take that chance.
If it's just for your own use at home, the chance of them going after is you is slim. But getting paid for it will definitely put you in the spotlight..
« Last Edit: March 03, 2023, 07:45:34 AM by manfromyard »

johnb51

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Re: Illegal or Not?? Mango Scions
« Reply #4 on: March 03, 2023, 09:41:40 AM »
Hello, would it be illegal to sell scions (not plants) of a patented variety of mango such as those of Zills nurseries (coco creme, etc...)
Just give them away or trade, and you should be alright.  ;)
John

drymifolia

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Re: Illegal or Not?? Mango Scions
« Reply #5 on: March 03, 2023, 10:05:45 AM »
Hello, would it be illegal to sell scions (not plants) of a patented variety of mango such as those of Zills nurseries (coco creme, etc...)

This is not legal advice, but as far as I understand it, either propagating or selling material that can be used for propagating a patented plant would be a violation of their patent rights. That's a matter of civil liability, not a crime, at far as I know. So they could sue you or send threatening letters, or both.

" Section § 506 of the Copyright Act authorizes criminal prosecution for a party who willfully infringes a copyright when the infringement:

    is for purposes of commercial advantage or private financial gain,
    results in the production of over $1000 worth of illegal copies; or
    involves a work intended to be commercially distributed (example: an unreleased film or music album).

Penalties for criminal copyright infringement can be found at 18 U.S.C. § 2319. Fines for criminal copyright infringement range from a minimum few thousand dollars worth up into the millions. Criminal copyright infringement penalties can even extend to to prison sentences of up to ten years in federal prison."

You can definitely go to prison for this violation. Will you? Unlikely, but I would never take that chance.
If it's just for your own use at home, the chance of them going after is you is slim. But getting paid for it will definitely put you in the spotlight..

Copyright and patent are entirely different types of intellectual property, that provision does *not* apply to patents. For all I know there might be a similar one for patents, but I'm not aware of it if so.

brian

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Re: Illegal or Not?? Mango Scions
« Reply #6 on: March 03, 2023, 10:17:29 AM »
Yes, copyright and patent are different.  I've never heard of criminal liability for patent violation

drymifolia

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Re: Illegal or Not?? Mango Scions
« Reply #7 on: March 03, 2023, 10:30:33 AM »
Maybe Im not looking in the right place but I only see C-20 (guessing this is Coconut Cream) is patented by Gary. 

Anyone see others?

Looks like you're right, unless someone else owns the other ones, C-20 aka Coconut Cream is the only Zill patent:
https://patents.google.com/?q=%28mango%29&inventor=Zill&oq=inventor:%28Zill%29+mango

tru

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Re: Illegal or Not?? Mango Scions
« Reply #8 on: March 03, 2023, 10:39:35 AM »
So what about if you sold seeds of coconut cream? Would that technically be legal? "the inventor must have actually asexually reproduced the plant. Asexual reproduction means that the plant is reproduced by means other than seeds" - legal encyclopedia so I don't really know where polyembryonic seeds fall into
« Last Edit: March 03, 2023, 11:05:21 AM by tru »
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brian

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Re: Illegal or Not?? Mango Scions
« Reply #9 on: March 03, 2023, 11:08:36 AM »
I suspect that anything results in the same generic material is affected.  If there was a simple loophole it would make the patent pointless. 

Also the name is probably trademarked.

If you give your neighbor some scion probably nobody will notice or care.  If you start advertising sales on it you may get a cease-and-desist request or a lawsuit.

Squam256

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Re: Illegal or Not?? Mango Scions
« Reply #10 on: March 03, 2023, 12:16:22 PM »
We do not produce grafted or seedling Coconut Cream trees, and don’t distribute the budwood either. There are nurseries in south Florida that do without license, however.

fliptop

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Re: Illegal or Not?? Mango Scions
« Reply #11 on: March 03, 2023, 04:16:13 PM »
I'm confused -- I thought you could plant seeds of Coconut Cream? Because it's polyembryonic, you're not necessarily creating a clone in the way grafting a scion would? Help clarify for a Coconut Cream seed planter!



drymifolia

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Re: Illegal or Not?? Mango Scions
« Reply #12 on: March 03, 2023, 06:23:18 PM »
Also the name is probably trademarked.

Just checked and nope. Their patent explicitly says it tastes like coconut cream, and the general public is already using "Coconut Cream" as the cultivar name, so they likely would have trouble getting a trademark at this point.

I'm confused -- I thought you could plant seeds of Coconut Cream? Because it's polyembryonic, you're not necessarily creating a clone in the way grafting a scion would? Help clarify for a Coconut Cream seed planter!

I'm pretty sure that's a question the courts have never resolved, but my guess is it would not be considered patent infringement, but if you sell the seeds or seedlings maybe don't claim it is a clone (since like you said, it's not a guarantee since poly seeds usually have at least one zygotic embryo).

manfromyard

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Re: Illegal or Not?? Mango Scions
« Reply #13 on: March 03, 2023, 07:16:49 PM »
Yes, copyright and patent are different.  I've never heard of criminal liability for patent violation

Look's like you're right, and no-one's done criminal yet although they've come close.

"However, there was one case out of the United States Supreme Court that came very close to imputing a standard of criminal conduct for patent infringement. In Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2010), the Supreme Court affirmed the decision of the United States Court of Appeals for the Federal Circuit and held that “induced infringement under § 271(b) requires knowledge that the induced acts constitute patent infringement.” That holding was no surprise, but what was surprising was the Court’s holding that the knowledge requirement for induced infringement included at least “willful blindness.” This raised a few criticisms among legal scholars. Jacob S. Sherkow of the Michigan Telecommunications and Technology Law Review noted that the decision “violates this longstanding separation between criminal and civil mental states.” (19 Mich. Telecomm. & Tech. L. Rev. 1 (2012)) James G. Dilmore of the Duquesne Law Review said the decision “unnecessarily blended civil and criminal standards.” (50 Duq. L. Rev. 659 (2012)) Again, I note that the decision is the closest the U.S. patent system has come to making patent infringement a crime."..

I still wouldn't sell the scions under their name, but if you do, let us know how it goes!  :-\

Galatians522

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Re: Illegal or Not?? Mango Scions
« Reply #14 on: March 03, 2023, 10:45:50 PM »
I think that we should support the Zills and the amazing work that they are doing as much as possible. I want to say that I remember reading somewhere that only 1 out of about every 1,000-2,000 mango seeds they grow out gets released as a new variety. It costs about $25/year to take care of a mango tree (water, labor, fertilizer, taxes, etc.). If those trees take 5 years to bear, he has between $125,00 and $250,000 invested in each new variety that is released. Since I don't care to spend that kind of money myself, I am happy to pay him a few dollars extra for the one variety that he has asked people not to propagate.

pagnr

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Re: Illegal or Not?? Mango Scions
« Reply #15 on: March 04, 2023, 12:23:58 AM »
With the polyembryonic mango seed, if the patent applied to a mango variety with the characteristics ABCD, the clonal seedling would also have the characteristics ABCD and would be indistinguishable for patent purposes. A zygotic might be ABCd if you are lucky, who knows if that would infringe the patent. I guess it becomes ABCD$$$$$ vs ABCd$$ ??
I hear there was a case in Australia with giant blueberries where the patent holder took action against another grower who started growing "a Version" of the original.
Those are the developer growers words, so he wasn't explicit on the how and why.
It probably comes down to the level you are operating on.
Some may recall the music file downloading cases where major music companies went after teenagers who " illegally " downloaded music, in test cases or to set an example.

drymifolia

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Re: Illegal or Not?? Mango Scions
« Reply #16 on: March 04, 2023, 03:09:56 AM »
With the polyembryonic mango seed, if the patent applied to a mango variety with the characteristics ABCD, the clonal seedling would also have the characteristics ABCD and would be indistinguishable for patent purposes. A zygotic might be ABCd if you are lucky, who knows if that would infringe the patent. I guess it becomes ABCD$$$$$ vs ABCd$$ ??

While a patent does describe certain plant characteristics, it does not prohibit you from growing a plant with even identical characteristics, as long as you didn't produce it via asexual vegetative reproduction from the patented variety.

Growing a zygotic seedling of a patented plant is pretty clearly never patent infringement (other than GMO gene patents, a different issue). This is true even if the seedling and its fruit are indistinguishable from the patented variety.

On the other end of the spectrum, rooting a cutting, grafting a scion, or using tissue culture to reproduce a patented plant is definitely always patent infringement, or providing someone with material for the purpose of doing those things.

If there were a patented plant that produced 100% nucellar embryos in its seeds, there would be a pretty good argument that it would infringe the patent to plant its seeds. However, I'm not aware of any type of mango (or citrus) that never produces zygotic embryos. Therefore, it seems like you should have the right to plant the seeds even if some percentage of them will be clonal. However, as I said, I think this is an unresolved legal question.

Now if you hypothetically were to figure out which seedlings are clonal and sell them with some kind of statement to that effect, you might be pulling yourself back into infringement land.
« Last Edit: March 04, 2023, 03:13:25 AM by drymifolia »

pagnr

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Re: Illegal or Not?? Mango Scions
« Reply #17 on: March 04, 2023, 03:58:45 AM »
Yes, I should have been more clear that the polyembryonic mango seedling was an identical clonal. If it was one of the Zygotic embryos it would be a different case.
I think most people who grow a seedling of a known variety aim to get the same or pretty close to it, if that is genetically likely.
In Australia there is a plant breeders exemption for growing patented varieties.
Possibly by the time your seedling fruits to any real extent, the varieties would have moved on, and new ones in the spotlight.

fliptop

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Re: Illegal or Not?? Mango Scions
« Reply #18 on: March 04, 2023, 08:08:28 AM »
To perhaps add to the confusion, I believe I read somewhere within the TFF that there can be differences within "clonal" seedlings--if I remember correctly (and it's a big if), they'll have the same genes, but they can be expressed differently? My brain doesn't understand scientific things, so apologies if I misread or misremembered this. Regardless, drymifolia addresses this by noting applicable propagation methods (rooting, grafting, tissue culture).

Galatian522, my planting Coconut Cream seeds was not meant as an affront to the hard work of the Zills.  I originally didn't know it was patented (didn't even know there was such a mango until 2017 or 2018). The 2018 seedling I have flowering has leaves that smell like what Alex calls Indian - Alphonso. I do not like this type of mango. If it holds fruit, I may need to enlist someone who like Alphonso-type mangos to rate its quality.

Jabba The Hutt

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Re: Illegal or Not?? Mango Scions
« Reply #19 on: March 04, 2023, 08:41:45 AM »
I'm confused -- I thought you could plant seeds of Coconut Cream? Because it's polyembryonic, you're not necessarily creating a clone in the way grafting a scion would? Help clarify for a Coconut Cream seed planter!



25 to Life :P

pagnr

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Re: Illegal or Not?? Mango Scions
« Reply #20 on: March 04, 2023, 02:44:01 PM »
To perhaps add to the confusion, I believe I read somewhere within the TFF that there can be differences within "clonal" seedlings--if I remember correctly (and it's a big if), they'll have the same genes, but they can be expressed differently?

The genes in the DNA are not fixed in place, there is an amount of swapping around on the strands.
If clonal seeds have the genes ABCDE, it is possible that differences could arise if a seedling  ended up with ABEDC, ( same genes different order )
or ABCD3 ( same genes E reversed ).
As there are 2 DNA strands in the genome, there can also be swapping between the strands.
A hybrid variety could be ABCDE on one strand and abcde on the other strand.
Seedling could have the same genes, but in different arrangements ie swapped AbCDE / aBcde.
When the genes are read, there may be slight or bigger differences in expression.

Galatians522

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Re: Illegal or Not?? Mango Scions
« Reply #21 on: March 04, 2023, 04:20:13 PM »
Galatian522, my planting Coconut Cream seeds was not meant as an affront to the hard work of the Zills.  I originally didn't know it was patented (didn't even know there was such a mango until 2017 or 2018). The 2018 seedling I have flowering has leaves that smell like what Alex calls Indian - Alphonso. I do not like this type of mango. If it holds fruit, I may need to enlist someone who like Alphonso-type mangos to rate its quality.

Based on what I know of the private individuals who do this kind of work--Zills, Zagers, etc. They are fine with you growing seeds out in your back yard for personal consumption--that is how their families got started in this, after all. Just don't turn it into a money making enterprise. On the other hand, big corporations like Monsanto and the University of Florida will hunt you down if they find out that you have grown seeds from their plants. I personally know of a guy who grew blueberry seedlings from UF genetics (blueberry seeds are zygotic, by the way). He ended up with 1 or 2 excellent plants and when the University found out, they came to confiscate the plants and said that they owned the propagation rights. I will add 1 caveat, however. Plant patents expire after 20 years unless they are renewed. Once the patent has expired you can do what you want with the genetics.

fliptop

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Re: Illegal or Not?? Mango Scions
« Reply #22 on: March 04, 2023, 08:10:54 PM »
C-20 patent expires March 20, 2031

On a side note, based on what pagnr points out regarding gene expression, I wonder if Lemon Zest and Orange Sherbet are clones of Po Pyu Kalay?

fliptop

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Re: Illegal or Not?? Mango Scions
« Reply #23 on: March 04, 2023, 08:17:24 PM »
Too funny about 25 to Life, Jabba the Hutt! I wonder how a lawyer would handle the case if one was facing that? Would the people/business that sold the Coconut Cream Mango to the seed planter bear any responsibility--seeing that the patent information was not disclosed at the time of sale?

drymifolia

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Re: Illegal or Not?? Mango Scions
« Reply #24 on: March 04, 2023, 10:11:13 PM »
Galatian522, my planting Coconut Cream seeds was not meant as an affront to the hard work of the Zills.  I originally didn't know it was patented (didn't even know there was such a mango until 2017 or 2018). The 2018 seedling I have flowering has leaves that smell like what Alex calls Indian - Alphonso. I do not like this type of mango. If it holds fruit, I may need to enlist someone who like Alphonso-type mangos to rate its quality.

Based on what I know of the private individuals who do this kind of work--Zills, Zagers, etc. They are fine with you growing seeds out in your back yard for personal consumption--that is how their families got started in this, after all. Just don't turn it into a money making enterprise. On the other hand, big corporations like Monsanto and the University of Florida will hunt you down if they find out that you have grown seeds from their plants. I personally know of a guy who grew blueberry seedlings from UF genetics (blueberry seeds are zygotic, by the way). He ended up with 1 or 2 excellent plants and when the University found out, they came to confiscate the plants and said that they owned the propagation rights. I will add 1 caveat, however. Plant patents expire after 20 years unless they are renewed. Once the patent has expired you can do what you want with the genetics.

Are you sure those examples you know about aren't gene patents (i.e., GMO)? Because it is very clear that a plant patent does NOT give them the right to stop you from planting zygotic seeds. Only a patent for an inserted gene gives you that right (due to a really stupid supreme court case).