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  #1  
Old 05-31-2012, 01:12 AM
pinkham pinkham is offline
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patented or trademarked orchids.
Default patented or trademarked orchids.

Hi everyone,
I have a story and a question for you.
A few years ago I bought a limelight hydrangea from a nursery for bonsai training. After deciding on it's style I pruned off all the unwanted growth. Rather than throw the cuttings away, I rooted them.....15 or 20 of them. I gave most of them away. Long story short, it was brought to my attention that this hydrangea was patented or trademarked and it was technically illegal to reproduce.
Are the laws on reproduction of orchids the same?
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  #2  
Old 05-31-2012, 01:54 AM
lambelkip lambelkip is offline
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yes, the laws are the same. if any plant is patented, you can't legally give away cuttings, divisions or clones.
trade marks are an entirely different issue. they prevent you from selling a similar product with the same name.
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  #3  
Old 05-31-2012, 06:22 AM
Magnus A Magnus A is offline
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But how can he patent a plant?
Was it genetic modified?
How can he prove that it is a new discovery that is not part of a natural variation within the species?
And how do he prove in court that it is the same plant and not another?
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  #4  
Old 05-31-2012, 06:28 AM
Magnus A Magnus A is offline
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Another though, the patent must be public and possibly to get. Would be very intereting to read the claims and see if they are valid.
There are general not a check (from the patent office) of your claims are valid when you file a patent, they only check that the formal writing parts is correct.
If you write invalid claims in a patent its just a expencive piece of crap...
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  #5  
Old 05-31-2012, 09:10 AM
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orchidsarefun orchidsarefun is offline
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but seeds are OK ?
If you want to register a grex where the parent/s were patented ( for example ), would you have to prove to the parent registrants that the plants were seed produced ?
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  #6  
Old 05-31-2012, 09:46 AM
msaar msaar is offline
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Plant patents only apply to asexual reproduction. See this thread: Patent Pending

Last edited by msaar; 05-31-2012 at 09:48 AM..
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  #7  
Old 05-31-2012, 10:05 AM
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orchidsarefun orchidsarefun is offline
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Quote:
Originally Posted by orchidsarefun View Post
but seeds are OK ?
If you want to register a grex where the parent/s were patented ( for example ), would you have to prove to the parent registrants that the plants were seed produced ?

put another way - does RHS record which parents are patented and then you are required to prove to them/ the parent registrant that no patent was infringed upon ?
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  #8  
Old 05-31-2012, 10:32 AM
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camille1585 camille1585 is offline
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The patentability of plants is the subject of huge debate, and during my Master I did a consultancy project for a breeding company to see what the current case law is on this, and spoke to patent lawyers. For now patenting living things in only done the US (unsurprisingly). The entire subject is still a huge gray area legally, because the debate is on A) whether living things ethically should be patentable, and B) do new varieties even meet the criteria for patenting in the first place.
Patent and trademark are two very different things. A trademark only protects the name, not the cultivar/variety, so both sexual and asexual (so cuttings) reproduction is allowed. Patents on the other hand are a whole different matter. If you hydrangea was patented, then it is illegal to take cuttings or use pollen/seed without the patent holders permission (and then pay royalties for each ‘copy’ made. Patents are very contested because it is incompatible with Plant Breeders Rights,use in many countries. Essentially the registered varieties are protected (people can’t sell them as their own), yet other breeders can legally use them in their breeding programs to create another variety, as long as it is significantly different from the PBR protected plant.


From talking to lawyers and other breeding companies, because of the gray zones it is tolerated for individuals to reproduce the plant for their own personal use (but still illegal). Their concerns lay mainly with commercial illegal use. If the variety was patented more than 20 years ago though, then it has lost all protection.


This affects ALL plants, so orchids too. So in which case, if you follow the law to the letter it is illegal to divide a patented plant!
Personally I find all this ridiculous. Taking a few cuttings is not the end of the world, and it is difficult to trace.


Quote:
Originally Posted by Magnus A View Post
But how can he patent a plant?
Was it genetic modified?
How can he prove that it is a new discovery that is not part of a natural variation within the species?
And how do he prove in court that it is the same plant and not another?
This is precisely what the controversy is about, and where the gray zones are! Patented things must be new, and require an inventive step, ie it is not obvious what you have to do to get to the final product. The inventive step part is not really an issue. Whether the plant was made through classical breeding or with the aid of molecular markers, it was invented. The issue lies with the newness. Your variety may be unique and innovative (purple cauliflower for instance) but all the genetic material involved already existed, it just got mixed up differently! The breeder did not create the color genes, he selected for them. Unfortunately no one is stepping up to clearly lay out the ground rules about plant patents. Case law is what people are going by.

GMOs are a totally different case, since corn with BT genes in its genome does not naturally exist. Yes all those genes already existed, but the newness is that they were combined for the first time.
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Last edited by camille1585; 05-31-2012 at 10:37 AM..
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  #9  
Old 05-31-2012, 11:23 AM
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orchidsarefun orchidsarefun is offline
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I wonder if this is contributing to the glut in NOIDs in the USA. Essentially from this year on ( at least that's what I have noticed ), the big box stores are stocking mostly NOID phals. Hausermann's which is a world-famous orchid nursery only stock NOID Miltoniopsis. If you don't officially name the plant, then there can be no legal recourse.

Does anybody know if RHS does any patent-related investigation prior to registering a new grex ?
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  #10  
Old 05-31-2012, 11:36 AM
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camille1585 camille1585 is offline
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Big box stores and places like Hauserman's are only resellers, so it doesn't matter if those noids are protected or not. It's not their problem if people illegal propagate them.

I think the increasing Noidness''is because it's a good way to make money. Non hobbyists get pulled in by all those pretty blooming Phals and such, and not so much the stuff that we collect (and not many things are in bloom at a vendor). The economy may have to do with it, selling Noids may be helping them stay afloat. And when have big box stores ever sold anything EXCEPT Noids? lol
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