Author Topic: Illegal or Not?? Mango Scions  (Read 1262 times)

Galatians522

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Re: Illegal or Not?? Mango Scions
« Reply #25 on: March 04, 2023, 11:11:37 PM »
It was not gmo. I have not looked for that particular blueberry variety in a long time. It is currently for sale on-line. So, you must be right.

Draak

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Re: Illegal or Not?? Mango Scions
« Reply #26 on: March 08, 2023, 03:45:19 AM »
This thread has been really helpful!

Aside from patent, there exists a second route of plant IP protection: the plant variety protection act. If a varietal is registered with the USDA plant variety protection office, it is similarly illegal to propagate this material without the consent of the registered owner. Surprisingly few plants are registered; there are no mangos protected in this way. 

https://www.ams.usda.gov/services/plant-variety-protection

As for patent protection, pretty much any form of propagation, including any form of grafting or generation of a clone, is illegal without the owners consent or agreed upon licensing fee. Methods of cloning include (but are probably not limited to):

Planting rhizomes (bits of root)
Taking cuttings (twigs)
Layering
Planting bulbs
Grafting and budding
Division
Using corms
Planting slips
Using runners
Nucellar embryos
Planting apomictic seeds (seeds that donít go through meiosis)

Therefore, cloning by using a polyembryonic seed is illegal without the consent of the IP holder.

However, if the seedling you generate is not a clone of the parent, then it is not IP protected, and you yourself could patent the new seedling.

https://larsonpatentlaw.com/blog/some-points-about-plant-patents/


drymifolia

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Re: Illegal or Not?? Mango Scions
« Reply #27 on: March 08, 2023, 09:54:53 AM »
This thread has been really helpful!

Aside from patent, there exists a second route of plant IP protection: the plant variety protection act. If a varietal is registered with the USDA plant variety protection office, it is similarly illegal to propagate this material without the consent of the registered owner.

Not exactly! Unlike plant patents, plant variety protection does not stop non-commercial propagation. You're only prohibited from *marketing* or *selling* the protected variety. It would be perfectly legal to buy a protected variety and then graft it onto other rootstocks for your personal use.

Quote
Therefore, cloning by using a polyembryonic seed is illegal without the consent of the IP holder.

However, if the seedling you generate is not a clone of the parent, then it is not IP protected, and you yourself could patent the new seedling.

You can see how this creates a gray area, since there's no easy way to know what kind of seedling a particular seed will produce, without doing a DNA test. Mangoes and citrus produce seeds with both zygotic and nucellar embryos, and there's no reliable way to distinguish between them.
« Last Edit: March 08, 2023, 10:02:30 AM by drymifolia »

JakeFruit

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Re: Illegal or Not?? Mango Scions
« Reply #28 on: March 08, 2023, 10:07:10 AM »
Not exactly! Unlike plant patents, plant variety protection does not stop non-commercial propagation. You're only prohibited from *marketing* or *selling* the protected variety. It would be perfectly legal to buy a protected variety and then graft it onto other rootstocks for your personal use.
If not already established (IANAL and I'm not spending my morning researching it), this seems like where any challenges to any law would fall....until Monsanto gets into breeding mangoes.....

pagnr

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Re: Illegal or Not?? Mango Scions
« Reply #29 on: March 08, 2023, 02:28:48 PM »
You can see how this creates a gray area, since there's no easy way to know what kind of seedling a particular seed will produce, without doing a DNA test. Mangoes and citrus produce seeds with both zygotic and nucellar embryos, and there's no reliable way to distinguish between them.

I am not seeing the grey area so much.

If you grow polyembryonic Mangoes for rootstock ( also polyembryonic Citrus ), it is reasonably easy to tell which are clones for rootstocks.
More so it is fairly easy to tell which are not a clone as they stand out from the rest.
If it really comes down to it, yes you are visually assessing the clones and making assumptions, but this is routinely done in grafting nurseries.
Some pretty close off types certainly get through and some clones are also size graded out.

The issue of propagating a protected fruit tree will probably only arise when it actually fruits.
Ornamental protected plants ie selected foliage types, dwarf hedge varieties etc etc will be breaching rules at any stage. They are protected for visual characters like foliage size colour etc.
Until the protected fruit tree actually fruits it could be difficult to distinguish. The original developer could probably do so based on Mango leaf shape and colour of growth tips etc without a DNA test.
If there is no reliable way to tell which polyembryonic seedling of variety X is a clone, then the reverse is true, there is no reliable way to tell which is not.
Although incorrect, it could be assumed that all polyembryonic seedlings are clones until proved otherwise.
The best strategy is probably quietly grow the seedlings until they fruit. By that time the developer may have move on to newer types also.

drymifolia

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Re: Illegal or Not?? Mango Scions
« Reply #30 on: March 08, 2023, 02:42:41 PM »
If you grow polyembryonic Mangoes for rootstock ( also polyembryonic Citrus ), it is reasonably easy to tell which are clones for rootstocks.
More so it is fairly easy to tell which are not a clone as they stand out from the rest

The only research studies I've seen on that question found that the usual tests used in the trade to remove zygotic embryos are not very accurate (in other words, seedlings separated by size, vigor, or even the physical location of the embryo within the seed). Even testing physical characteristics like leaf scent will only eliminate outcrossed zygotic embryos, many self-pollinated zygotic embryos will be close to the mother tree in any characteristic you are testing for.

The moment you "create" the clone of a patented variety, you have infringed that patent, but the gray area is you can surely be allowed to plant seeds in search of zygotic embryos, even though doing so will also necessarily mean you are (at least initially) growing some clones until you identify and eliminate them. The fact that the standard industry practices for identifying then aren't scientifically accurate is where the gray area comes in.

pagnr

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Re: Illegal or Not?? Mango Scions
« Reply #31 on: March 08, 2023, 03:46:47 PM »
Australia....
Exceptions to Plant Breeders' Rights
In this, the following acts do not infringe upon PBR: Certain acts done for private, experimental or breeding purposes. Conditioning and use of farm saved seed. The use and sale of propagative material of the relevant variety as a food, ingredient or fuel.
Exceptions to the Rights

Monopoly rights do not extend to the propagating material of the protected plant variety in all circumstances. The following acts are not an infringement of the Plant Breeder's Right:

The use of the variety privately and for non-commercial purposes, for experimental purposes, and for breeding other plant varieties. A variety can be used for these purposes irrespective of the existence of Plant Breeder's Rights.

Similar in Europe it seems.
https://european-seed.com/2021/03/the-edv-concept-and-the-breeders-exemption/

I guess it would be the same in USA.

The grey area might possibly more in enforcing your rights against a Corporation or University with big $$, legal Depts, expert witnesses from the Horticulture Dept, and the facilities to DNA test etc. I don't think the truth or the rules count for much in Legal cases, until the very end ( if then ) and if you can get there.

 

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