Re: Re: copyright on house plants?

I just have to respond to this comment. I am a patent attorney in Australia, with an active interest in the world of plant patents. Being based in Australia, it was of concern that for many years we had no protection for plants. There was a lot of activity including a number of people who forecast dire results if protection was available. The main concern ,as I recall, was that costs would rise and it may constrain government researchers in their seed breeding programs. We, in Australia, then considered that plants could be considered patentable under our own patent legislation, Later, then, there was specialist legislation (plant breeders rights), but we did not alter our original presumption ordinary patents. The system, I think, has been very beneficial. Investment in plant breeding programs can now attract more investment and generally we now have access in Australia to a range of plants that is somewhat greater. Overall a good thing. The philisophical difficulties do not appear to cause difficulties in practice. Howard Schulze

On 01/07/2005, at 6:35 AM, S. Martin Keleti wrote:

> There are such things as plant PATENTS, and the patented plants cannot
> be reproduced asexually without infringing the patents. Your
> nurseryman was correct in stating that if the plant were to go to
> seed, that would not be an infringement.
>
> In the US, check out Chapter 15 of Title 35 of the United States Code
> (sections 161 through 165). I'm not as familiar with the Plant Variety
> Protection Act (it doesn't come up in my practice of music law, but I
> recall plant patents from law school).
>
> Next time you're at a plant nursery (especially in late winter/early
> spring), you may notice that there are two categories of roses, often
> sold in bare-root form, and that prices differ considerably: the
> so-called "patent" ones (patented varieties) cost more than those that
> are not. Even if the patent were to expire, I imagine that it might be
> possible to register the TRADEMARK of the variety's name, even if it
> is no longer patented (just as for drugs, the name-brand continues to
> exist even after generics are legal).
>
> At 02:10 PM 6/29/2005, you wrote:
>> I visited a nursery last week. A pretty little plant labeled
>> "fuchsia" had a curious label on it: "unauthorized propagation
>> prohibited." Hmmm... I find IP law sort of like a mad wonderland
>> anyhow: logic just enough askew to remind one of Borges, Fellini, or
>> Escher -- I think it is like that for most of us outsiders.
>>
>> So, I just had to ask. I asked the clerk who became visibly befuddled
>> with an expression I dared not photograph or otherwise propagate. We
>> tracked down the head nurser who explained it thusly. "The plant is
>> copyrighted." My own facial expression apparently encouraged him to
>> continue: "Officials come to inspect the nursery from time to time to
>> make sure all of our plants are licensed."
>>
>> "What sort of officials?" and "what if I buy the plant and it goes to
>> seed" and "who trains these officials" and "do you really mean
>> 'copyright' or might you mean 'patent', instead?" and dozens of other
>> questions came to mind. I have learned not to ask the "do you really
>> mean copyright or might you mean patent (or trademark) instead"
>> question in polite company -- it sends many people into a trance and
>> seems to anger the others.
>>
>> But I did ask the "what sort of officials" question. I was imagining
>> an SIAA or an ASCAP or RIAA for plants. They would train armies of
>> botanists. The botanists armed with portable DNA labs would tour the
>> country in airstream trailers together with an entourage of
>> attorneys, federal agents and shotgun judges stopping at each
>> nursery, and yucking it up after each successful bust. Or perhaps
>> there is a whole branch of the government cloned from some secret
>> branch of the OSS that polices our nation's fuchsia. The nurser
>> explained it was more like ASCAP-- they would come in (plainclothes),
>> look at all the plants, and if they see any that need to be licenses,
>> then ask the nurser to produce evidence of licensure.
>>
>> And I did ask "what if I buy one and it goes to seed?" His answer:
>> "that's not a problem since if it grows from seed, then it is a
>> different plant. It is just clippings and so forth they worry about."
>>
>> A wee bit of digging on the net tells me it is really neither
>> copyright nor patent but plant law. Chapter 57 of Title 7
>> specifically deals with the 1970 Plant Variety Protection Act which
>> provides legal intellectual property rights protection, to developers
>> of new varieties of plants that are sexually reproduced. The 1994
>> amendment to the act prohibits the sale of all farmer-saved seed
>> without the permission of the variety owner.
>>
>> I know that this forum is about copyright and not patents or plants,
>> but this is a category of IP law just so cool, I had to bring it up.
>> It points to new ways of securing the rights of derivation. If the
>> intellectual underpinnings of an idea can be traced back in some
>> unambiguous way (like ideational DNA -- should I file a patent now?)
>> then some clever legislators will probably find persuasive an
>> argument that all derivative thought should be licensed.
>>
>> David Dailey
>
> S. Martin Keleti
> Cohen and Cohen
> 740 North La Brea Avenue
> Los Angeles, CA 90038-3339
> 323.938.5000
> 323.936.6354 fax
>
>
>
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Received on Sat Jul 02 2005 - 00:10:46 GMT