Re: Re: copyright on house plants?

Sounds like the fuscia plant was covered by a plant patent. But there is more.

 35 U.S.C. 161 provides that a plant patent may granted to an inventor  who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant (excluded, I have been told, because they are used for food). The grant protects the inventor's right to exclude others from asexually reproducing (e.g. by grafting, root cuttings etc), selling, or using the plant so reproduced. Plant patents, which do not cover sexual reproduction, are issued by the U. S. Patent Office in the Department of Commerce and have been around since 1930.

In 1970, after lobbying by representatives of the seed companies, statutory protection for seed-reproduced plant varieties became available through the Plant Variety Protection Office, in the Department of Agriculture. (Seed savers beware!)

In 1980 the Supreme Court decided the case of Diamond v. Chakrabarty (447 U.S. 303). The Court held in a 5-4 decision that Title 35 U.S.C. 101 which provides for the issuance of a utility patent to the inventor of "any" new and useful "manufacture" or "composition of matter" applies to the invention of a human-made, genetically engineered bacterium capable of breaking down crude oil The Patent Office had rejected claims for the bacterium on the (long held) assumption that living things are not patentable subject matter. The Court of Customs and Patent Appeals reversed, concluding that the fact that micro-organisms are alive is without legal significance for purposes of the patent law. The Supreme Court agreed that Chakrabarty's micro-organism constituted a "manufacture" or "composition of matter" within the patent statute. The Court rejected the argument that the 1930 Plant Patent Act, which afforded patent protection to asexually reproduced plants, and the 1970 Plant Variety Protection Act, which authorized protection for certain sexually reproduced plants but excluded bacteria from its protection, evidenced  a congressional understanding that the terms "manufacture" or "composition of matter" in 101 did not include living things

On 6/30/05, S. Martin Keleti <keleti[_at_]manifesto.com> 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