Patent Pending

[orchidsarefun]

I purchased an orchid on e-bay and was surprised when I got it with a label "patent pending" I checked on RHS and the grex was registered in Jan 2007. How long do these things take ? How do I know if its genuine ? I am interested as its a potential pollen parent.

[Tsuchibuta]

Correct me if I'm wrong but in the US i believe Patent pending on the plant just means that asexual reproduction would be illegal (no cloning), so breed away if the grex is registered.

[orchidsarefun]

the comment. The tag actually says "patent process initiated". I think I used an "English" term for the same thing !
I would think if you breed the plant ( cloning or otherwise ) , the patent holder could look to you for a fee. What I need to know is how long a breeder can get away with the above tag line ?

[msaar]

From the US Patent & Trademark Office web site:
"Some persons mark articles sold with the terms “Patent Applied For” or “Patent Pending.” These phrases have no legal effect, but only give information that an application for patent has been filed in the USPTO. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited."

From the US Patent Law:
"35 U.S.C. 163Grant.
In the case of a plant patent, the grant shall include
the right to exclude others from asexually reproducing
the plant, and from using, offering for sale, or selling
the plant so reproduced, or any of its parts, throughout
the United States, or from importing the plant so
reproduced, or any parts thereof, into the United
States. (Amended Dec. 8, 1994, Public Law 103-465, sec.
532(c)(2), 108 Stat. 4987.)
35 U.S.C. 173Term of design patent.
Patents for designs shall be granted for the term of
fourteen years from the date of grant.
(Amended Aug. 27, 1982, Public Law 97-247, sec. 16,
96 Stat. 321; Dec. 8, 1994, Public Law 103-465, sec. "

[Cym Ladye]

I agree that the "Patent" appellation is intended to stop vegetative mercloning of that particular cultivar and the resultant sale of those meristems. It would not apply to using the plant for hybridizing.

CL

[orchidsarefun]

...its good to know that seeding ( self and hybrid ) is exempt

[Ray]

Also, the fact that the the cross was registered in 2007 has no bearing on the patent. It is more likely that it is a particular cultivar that is being patented.

[RosieC]

I wondered about it being the cultivar that is patented rather than the cross as well Ray. That's what I see with other plants I buy for the garden, I've seen ones where the same hybrid was on sale in many many colours, but only a few of the colours showed a patent with a cultivar name.

[Tsuchibuta]

I don't think you can patent the hybrid itself only the cultivar (clone) because of the ability of natural breeding.

If I do recall years ago there was a supreme court decision similar to this. The Monsanto company created genetically modified seed that began to interbreed with non gmo seed and the resulting progeny carried the gmo genes and so Monsanto sued the local farmers who had inadvertently grow this mutant seed. Unfortunately I can't find reference to it now (don't really have the resources available at the moment) and I don't remember the outcome.

[orchidsarefun]

to clarify - the patent is to prevent unlicenced asexual reproduction/mericloning ? If a patented cultivar is used to hybridise, that is still OK ?