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Thread: Patented Sarracenia; What does this mean for growers?

  1. #1
    Enthusiastic Enthusiast Zath's Avatar
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    Patented Sarracenia; What does this mean for growers?

    While checking out photos of Sarrs on FB, I ran across the name 'Cobra Nest'. Looking it up on Google, I discovered that it's been patented by one of the co-creators, James Booman.

    Patent US20020104139 - Sarracenia Plant Named 'Cobra Nest' - Google Patents

    I'm unsure of how common this is with cultivars, or what it actually means for the growers. The parentage is unknown even to the creators (from seed produced by two unkown hybrids), so it's not something that is likely to be duplicated by trial-and-error.

    Does this mean that division and dissemination of the plant by anyone other than the patent-holder is illegal?

    If not, then what is the point of patenting it, exactly?

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    clippity-clip-clip Clue's Avatar
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    Straight from the patent office: General Information About 35 U.S.C. 161 Plant Patents | USPTO

    Some fun reading: Plants are the Strangest People: Lawyer (Dracaena deremensis 'Warneckei,' 'Ulises,' 'Jumbo,' 'Bausei,' 'Skunky')

    Plant patents are good for 20 years, and apparently, you can't patent potatoes.
    "I, for one, can't wait to grow Nepenthes extincta!"
    Plant List ; blog

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    Whimgrinder's Avatar
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    Quote Originally Posted by Zath View Post
    Does this mean that division and dissemination of the plant by anyone other than the patent-holder is illegal?

    If not, then what is the point of patenting it, exactly?
    No, it means that in order to propagate it, you must either have a license with the patent holder or some sort of contract in which you agree to submit annual or semi-annual royalty fees for every copy you sell.
    Without such an agreement with the patent holder, it is illegal to make copies and distribute those copies, whether or not money changes hands.

    Addendum: do you know the difference between Patent, Trademark and Copyright? Most people have only a fuzzy idea of what differentiates the three. If you want to have a clearer understanding of these terms and how they can apply to plants, read more here.
    Last edited by Whimgrinder; 01-04-2016 at 11:57 AM.

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    Couldn't this be problematic because Sarracenia will duplicate themselves asexually, thus violating the patent for anyone who has them? Or does the owner have to do it, so just letting the plant sit there will get around it? Or will letting them duplicate be fine, but dividing them into separate pots cause the problem?

    I'm mostly confused about seeds though. Because this is a plant patent and not a gene patent like what Monsanto has, Cobra Nest X something else should be completely valid to distribute, right?

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    Whimgrinder's Avatar
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    Quote Originally Posted by Cruzzfish View Post
    Couldn't this be problematic because Sarracenia will duplicate themselves asexually, thus violating the patent for anyone who has them? Or does the owner have to do it, so just letting the plant sit there will get around it? Or will letting them duplicate be fine, but dividing them into separate pots cause the problem?

    I'm mostly confused about seeds though. Because this is a plant patent and not a gene patent like what Monsanto has, Cobra Nest X something else should be completely valid to distribute, right?
    Sarracenia don't exactly reproduce themselves as you've described. I mean, it's not as if you walk out to check on your plants and where yesterday there was one copy and today there are three. Yes, Sarracenia grow and produce large crowns with multiple leads, but unless a human intervenes and intentionally divides those crowns, they tend to remain intact as a single plant. It is the intentional human action of dividing and replicating a cultivar that is being addressed by a patent, not the natural process of growth, expansion and occasional production of offsets that is normal behavior of the plant. The key to deciding what violates the patent and what does not is human intervention and intent.

    Note: although it is not legal to do so, people will often divide a patented cultivar as backup for themselves. The patent police are not going to hunt you down and fine you for this. What a patent is intended to do is protect the breeders right to earn a royalty from every plant that gets propagated and sold. You're not impacting those rights just by making yourself a backup copy. If you drop a plant and it breaks in two, nobody is going to care. If you start making copies to give to all your friends, that is much more clearly a violation of the patent; even though no money exchanges hands, those gifts are regarded as lost revenue for the breeder, since royalty fees were not collected nor paid.

    Secondly, plant patents do not place restrictions on the sexual reproduction of the plant. Anyone can acquire a patented cultivar and use it in hybridizing without concern. The progeny of such efforts are all unique and are in no way regarded as copies of the original, so you can do whatever you like with sexually-generated plants. As far as I know, only genetically engineered genes are patentable. Any genes found in nature (unmanipulated by gene engineering process) are not patentable. We'd be in serious trouble if they were!

    Before anyone gets panicky about any of this, keep in mind that at this time there appears to be only two Sarracenia cultivars in commerce that have patents granted: S. Cobras Nest and S. Red Bug. Everything else in the genus is material for which there are no propagation restrictions.
    Last edited by Whimgrinder; 01-04-2016 at 03:41 PM.

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    carnivorous plants of the world -- unite! DragonsEye's Avatar
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    Quote Originally Posted by Zath View Post
    While checking out photos of Sarrs on FB, I ran across the name 'Cobra Nest'. Looking it up on Google, I discovered that it's been patented by one of the co-creators, James Booman.

    I'm unsure of how common this is with cultivars, or what it actually means for the growers. The parentage is unknown even to the creators (from seed produced by two unkown hybrids), so it's not something that is likely to be duplicated by trial-and-error.

    Does this mean that division and dissemination of the plant by anyone other than the patent-holder is illegal?
    As Whim stated, dissemination is not illegal if you have worked something out with the patent holder. To the best of my limited knowledge, division is not an issue, providing you are keeping said divisions yourself.

    The fact that not even the patent holder knows the lineage of the plant, strikes me as making the patent enforcement rather difficult.
    If I make a sarr cross and one or more of the offspring look similar to CN, that does not mean it is genetically the same as CN. So if genetic testing proves they are different, does the patent still cover it?

    For that matter, if my cross differs "significantly" (however that is decided .... And I would be interested to see what sort of rubric -- if any -- the patent office has derived for determining such) in some particular attribute, would that be enough to side step the patent restriction?


    Quote Originally Posted by Cruzzfish View Post
    Couldn't this be problematic because Sarracenia will duplicate themselves asexually, thus violating the patent for anyone who has them? Or does the owner have to do it, so just letting the plant sit there will get around it? Or will letting them duplicate be fine, but dividing them into separate pots cause the problem?

    I'm mostly confused about seeds though. Because this is a plant patent and not a gene patent like what Monsanto has, Cobra Nest X something else should be completely valid to distribute, right?
    Because seed produced plants are genetically different from the parent plant, crosses made using Cobra Nest would be not be covered by the patent. Even plants resulting from a selfing of Cobra Nest, again to the best of my limited knowledge, do not fall under the patent's purview, I believe.

    "Blessed are the cracked….
    For they are the ones who let in the light."



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    Quote Originally Posted by DragonsEye View Post
    As Whim stated, dissemination is not illegal if you have worked something out with the patent holder. To the best of my limited knowledge, division is not an issue, providing you are keeping said divisions yourself.

    The fact that not even the patent holder knows the lineage of the plant, strikes me as making the patent enforcement rather difficult.
    If I make a sarr cross and one or more of the offspring look similar to CN, that does not mean it is genetically the same as CN. So if genetic testing proves they are different, does the patent still cover it?

    For that matter, if my cross differs "significantly" (however that is decided .... And I would be interested to see what sort of rubric -- if any -- the patent office has derived for determining such) in some particular attribute, would that be enough to side step the patent restriction?




    Because seed produced plants are genetically different from the parent plant, crosses made using Cobra Nest would be not be covered by the patent. Even plants resulting from a selfing of Cobra Nest, again to the best of my limited knowledge, do not fall under the patent's purview, I believe.

    Time to start truebreeding these guys I guess.

  8. #8
    Whimgrinder's Avatar
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    Quote Originally Posted by DragonsEye View Post
    Because seed produced plants are genetically different from the parent plant, crosses made using Cobra Nest would be not be covered by the patent. Even plants resulting from a selfing of Cobra Nest, again to the best of my limited knowledge, do not fall under the patent's purview, I believe.

    Quite correct. You can self a patented plant till the proverbial cows come home, if that's your inclination. Nothing about that violates the patent. (Unless it's a specific gene the plant possesses that has been patented, as in the case of some "blue" Rose genes Suntory has engineered)

    - - - Updated - - -

    Quote Originally Posted by Cruzzfish View Post
    Time to start truebreeding these guys I guess.
    Define "truebreeding" please?

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