Gene Schurg wrote:
Recently I've seen a couple of phals with "vegetative propagation
prohibited" printed on the name tag. I know that some major corporations
are filing for plant patents. I hear about this more when they have
"Genetically altered Corn" or other major cash crops.
Great topic!
There are plenty of patented rose varieties. And fruit trees
(almost any new introduction is protected by either patent or a royalty
system). Actually, it seems that almost anything 'new and improved' has
a patent on it these days. Maybe I should patent the concept of
patenting everything... You don't have to be a major corporation, but
it does cost a non-trivial amount of money to get the patent. And even
more to enforce the patent.
I'd like to have a discussion here about plant patents and orchids.
Is it fair that I spend my time and selective breeding to create a navy blue
phalanopsis and get all kinds of awards on it only to sell a clone of it and
have someone else make a thousand copies?
No, but life isn't fair. If you sell a clone of your blue phal, you
should sell it for its market value. If its value includes the
potential of somebody making a zillion copies, you should include that
competition in your price. This is why some Paph clones go for 10,000+
US. You are buying the right to compete with the owner in making
hybrids. Phals are no different. If you don't want competition, don't
sell plants to competitors...
Anyway, I have nothing against plant patents per se, but I don't
think they are very enforceable unless somebody does something
exceedingly stupid. If your plant is patented, and you see them appear
in DoorMart by the trillions, and you didn't license it, it is
relatively easy to sue the bejeezus out of the violator. If somebody is
selling a patented plant out of their nursery, and can't prove that they
bought or licensed the production, then that is also pretty easy to
enforce. Lawyers cost money, though. A better strategy for cloneable
orchids might be to not sell a clone until you can sell a great many
clones. Contract it out if you have to. If you think a competetor can
make money selling your plant, then you should have faith that you can
do it as well. That is what I would do if I had a navy blue phal.
If I pay my good money for a plant don't I have some rights to make copies
of it? What if it sends out a keiki on its own? Do I have to destroy that
keiki? Would I go to jail if I sell that keiki?
You won't go to jail for selling a single keiki, because it is a
civil matter not a criminal matter. The patent holder might sue you in
civil court for damages, but lawyers cost money, so you would have to be
a big target to make it worthwhile. I'm not a lawyer, but I think that
'fair use' is a relatively established concept. A good analogy might be
videotape or music. It is well established that you are allowed to make
a copy of a purchased item for your personal use. You are not allowed
to make a lot of copies and sell or give them to your friends and
neighbors. At that point you are competing with the copyright holder
for business, and they have every right to nail you to the wall. They
will take your money, but you won't go to jail.
You can breed with a plant that says "Vegetative propagation
prohibited", since that is sexual propagation. No worries there.
Rob
--
Rob's Rules:
http://www.msu.edu/~halgren
1) There is always room for one more orchid
2) There is always room for two more orchids
2a. See rule 1
3) When one has insufficient credit to purchase
more orchids, obtain more credit