Jerry Bricker lcjbrick at ANTELOPE.WCC.EDU
Tue Feb 4 15:20:26 CST 1997

>Despite what U.Smith said I think there may be cause
>for worry regarding trademarks on plant names.  To use
>another business world example, the use of the names
>"Rollerblade", "Kleenix", and "Xerox" have been upheld
>in court.  Rollerblade Corp. took to task the local
>newspapers, etc. for calling all inline skates "rollerblades"
>and won in court.  Rather than voice our personal opinions
>regarding the use of trademarked names I suggest someone
>who knows the laws pipe in here.

The discussion on patenting plant material has been interesting but I'm
afraid that it has been far of the mark in what it entails.  That is
understandable in that the Taxacom discussion group is comprised of
taxonomists that think in terms of biodiversity and conservation.  As a
person with formal training in horticulture, I see the value of patenting
plant material as it represents an economic resource to the individual
seeking the patent.

I pulled my copy of "Plant Propagation: Principles and Practices (Hartmann
and Kester 1983; p. 226 & 227) off the shelf and read up on the issue.
Here is what the authors say on the issue in its entirety (please be
patient, it is very interesting reading):

"An amendment to the United States Patent Law was enacted in 1930 which
enabled the originators of new plant forms in the U.S. to obtain patents on
them.  This amendment added impetus to the development and introduction of
new and improved plants by establishing the possibility of monetary rewards
to private plant breeders and alert horticulturalists for valuable plant
introductions.  It has stimulated growers of fruit and ornamentals to be on
the lookout for improved plant forms and has handsomely paid numerous
fortunate or observant persons for their finds.

Essentially, what can be patented as stated in the statute is 'any distinct
and new variety of plant, including cultivated sports, mutants, hybrids,
and newly found seedlings, other than a tuber-propagated plant or a plant
found in an uncultivated state.'  For a new plant to be patentable, it must
be one that has been asexually reproduced and can be so propagated
commercially, as by cuttings, layering, budding, or grafting.  The plant
patent law also includes microorganisms.  Protection is also given to some
seed-propagated cultivars.

Characteristics which would cause  a plant to be 'distinct and new' and
thus patentable include such things as growth habit; immunity from disease;
resistance to cold, drought, heat, wind, or soil conditions; the color of
the flower, leaf, fruit, or stem; flavor; productivity, including
everbearing qualities in the case of fruits; storage qualities; form; and
ease of reproduction.

The applicant for a plant patent must be the person who invented or
discovered and subsequently reproduced the new cultivar of plant for which
the patent is sought.  If a person who was not the inventor applied for a
patent, the patent, if it were obtained, would be void; in addition, such a
person would be subject to criminal penalties for committing perjury.  A
plant found growing wild in nature is not considered patentable.

A plant patent issued to an individual is a grant consisting of the right
to exclude others from propagation fo the plant or selling or using the
plant so reproduced.  Essentially, it is a grant by the United States
Government, acting through the Patent Office, to the inventor (or his heirs
or assigns) of certain exclusive rights to his invention for a term of 17
years throughout the United States and its territories and possessions.  A
U.S. plant patent affords no protection in other countries.  The mere fact
that a patent has been issued on a new plant does not imply any endorsement
by the government of high quality or merit.  The only implication of a
patent on a plant is that it is 'distinct and new.'

The U.S. Plant Variety Protection Act, which becme effective in 1970,
extends plant patent protection to certain sexually propagated cultivars
which can be maintained as 'lines,' such as those of cotton, alfalfa,
soybeans, marigolds, bluegrass, and others."

There you have it folks.  A bit long but I felt that quoting the section in
its entirety was important as it lays out exactly what is covered by a
plant patent.  About a year ago this topic came up and was reported in
Science.  It seems that a French biotech company applied for a patent on
cotton and got it.  The company now holds exclusive rights on the plant
that prohibit any other groups from producing genetically altered cotton
plants.  The kicker is that the techniques of producing transgenic plants
are quite widespread and taught at most universities.  The patent's content
was that the company had exclusive rights to those techniques even if they
were common place.  The fear is that other companies would follow that lead
and begin seeking patent protection for other cultivated species such as
corn, wheat, and rice.  In any case it is a real issue and one that takes
on new meaning in the biotech age.



Jerry Bricker
Department of Biology
Laramie County Community College
Cheyenne, Wyoming 82007-3299
Phone: (307) 778-1139
Fax: (307) 778-1395
e-mail: lcjbrick at

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