Author Topic: plant patent question  (Read 220 times)

buddy roo

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plant patent question
« on: April 06, 2021, 12:52:00 PM »
Hi All have a question on plant patents, if I have a patented tree lets call it #1 and also a non-patented tree called #2 can I use the pollen from tree #1 to pollinate tree #2 and afterwards plant the seeds?

K-Rimes

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Re: plant patent question
« Reply #1 on: April 06, 2021, 01:11:52 PM »
There is history of Monsanto suing farmers for finding their genetics in adjacent plots that did not buy their seeds and taking them to the cleaners.

At the end of the day in litigious America, you can get sued for anything pretty much and it's really just how deep your bank account is to support the long running procedure.

That said, what you do on your own time in your own garden is pretty hard to track on a small scale. If you are doing this for commercial re-selling purposes, you could get in trouble but I kind of doubt it.

bsbullie

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Re: plant patent question
« Reply #2 on: April 06, 2021, 05:37:57 PM »
Bigger question is why do you want to patent it? 
- Rob

W.

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Re: plant patent question
« Reply #3 on: April 06, 2021, 08:02:12 PM »
Bigger question is why do you want to patent it?

I think the scenario in his post is that he does not own the patent to tree #1, someone else does.

K-Rimes's point is a good one. Organic Seed Growers & Trade Ass'n v. Monsanto Co. was dismissed in the Federal Courts and never decided one way or the other, because Monsanto said that they would not enforce the soybean patent on plants that were the "result of inadvertent means." The Supreme Court, in other rulings, has generously broadened the protections afforded by the Plant Variety Protection Act of 1970, which were already more generous than the Plant Patent Act of 1930. The research exemption in the PVPA of 1970 may not cover someone knowingly hybridizing patented fruit plants if enough justices decide it does not.

My advice would be to pollenate from tree #1 to tree #2 all you want, but do not sell any of the plants associated with the hybridizing without getting some sound legal advice beforehand.

buddy roo

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Re: plant patent question
« Reply #4 on: April 06, 2021, 08:04:11 PM »
Bigger question is why do you want to patent it?
Hi Rob I do'not want to patent anything, I would just like to grow out a few seeds on one of my trees who's male parent is under patent and if I achieve what I hope I would like to document the results                                                                           Regards   Patrick

swincher

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Re: plant patent question
« Reply #5 on: April 06, 2021, 08:47:46 PM »
As a general rule, where the patent is for a plant variety, only clonal propagation is prohibited, not sexual reproduction.

The monsanto issue was a patent on a particular piece of DNA that they had inserted into the genome of the plant, so they argued that any reproduction of that DNA sequence (including reproductive) would violate the patent.

So I would just say if it's a genetically modified plant, the patent owner might have a case for suing if you use it as breeding stock, but if it's just a normal plant patent based on regular breeding then you should have nothing to worry about, even if you intend to sell the resulting offspring some day. But you probably do want to get actual legal advice if that's the plan, as this was not intended to be legal advice!

« Last Edit: April 06, 2021, 08:52:46 PM by swincher »

Nyuu

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Re: plant patent question
« Reply #6 on: April 06, 2021, 11:02:58 PM »
As a general rule, where the patent is for a plant variety, only clonal propagation is prohibited, not sexual reproduction.

The monsanto issue was a patent on a particular piece of DNA that they had inserted into the genome of the plant, so they argued that any reproduction of that DNA sequence (including reproductive) would violate the patent.

So I would just say if it's a genetically modified plant, the patent owner might have a case for suing if you use it as breeding stock, but if it's just a normal plant patent based on regular breeding then you should have nothing to worry about, even if you intend to sell the resulting offspring some day. But you probably do want to get actual legal advice if that's the plan, as this was not intended to be legal advice!
And definitely agree with you the biggest issue with Monsanto is they patent genetic sequence so the farmers who got sued accidentally got genetic sequence from the modified corn . But manzano is too big to sue . Seed by my knowledge can't be patent and only reason manzano won the lawsuit is because they own the patent genetic sequence in the corn . So as long as a plant is not genetically modified you should be pretty safe . And of course I'm not a lawyer so no legal advice .