Patents, Trademarks Can Sow Confusion

By Reich, Lee | The Commercial Appeal (Memphis, TN), December 28, 2012 | Go to article overview

Patents, Trademarks Can Sow Confusion


Reich, Lee, The Commercial Appeal (Memphis, TN)


The intricacies of plant patenting came home for me this past year with a shipment of strawberry plants.

Strawberry plants send out runners, thin stems on the ends of which new plants form, which themselves take root and bear fruits and send out more runners. Those daughter plants forming at the ends of runners are useful for filling in a strawberry bed as well as for transplanting elsewhere to make a new bed.

But these particular plants that I bought last spring were a patented variety (Chandler), so transplanting those daughter plants would constitute a crime.

How about just letting the plants root by themselves? OK, but only for fruit production to fill in my strawberry bed. Propagation of any plant produced asexually (that is, not by seed) just to make new plants is forbidden under the Plant Patent Act of 1930.

The only exceptions are plants propagated by edible tubers white potatoes, for example. Growers of white potatoes evidently were vocal enough back when the act was being drafted to press for the right to save and replant their own potato tubers.

THE BEGINNINGS OF PLANT PROTECTION

Some might argue that the Plant Patent Act was too long in coming. If it had been in place earlier, then Stark Brothers Nursery, which bought propagation rights to the original Red Delicious apple for $3,000 in 1894, would not have had to erect a cage around the original Red Delicious tree. That cage only stopped people from using the original tree for propagation, however; once Stark Brothers started selling trees, those trees could be used by anyone to propagate new ones.

ON TO SEEDS, EVEN GENES

The 1930 legislation was broadened, in 1970, with the Plant Variety Protection Act.

It meant that seeds, which are sexually produced when pollen fertilizes eggs, could now also be protected by patents -- so- called utility patents. That's the same kind of patent used for, say, a new and better stapler or dog whistle or -- more recently and controversially -- genes. …

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