Re: Horticultural copyright
Subject: Re: Such thing as a "Horticultural Copyright"?
Date: 8 Jan 92 23:31:13 GMT

>|> I have a question regarding legalities around plant propagation.  Is there
>|> the concept of a "horticultural copyright"?  This copyright would prohibit
>|> propagation of plant varieties without a formal agreement with the
>|> original plantsman who produced the strain.

>I think patents do this.  Yes, you can patent a new hybrid plant.

Are there patents for open-pollenated varieties too?
Say someone spends 20 years carefully selecting the best plants of a
variety of tomato until they manage to develop an improved variety?
I'm sure they would want to patent it (to be the sole legal vendor).

It seems to me that this would be a big issue for breeders since it's easy
to propagate open-pollenated varieties by seed.




     'Plant Patents' have been around since the 1930s, in the USA.  The give
the 'inventor' rights to all commercial propagation, if the plant is
propagated asexually.  New potato varieties and new daylilies can be patented.
Existing varieties cannot be patented, and I believe any breeder can use the
material in further creations.  I think private propagation is also allowed.
        Historically, plants propagated by seed could not be accorded
proprietary rights.  This was what made hybrids so appealing to breeders.
The two parents of a hybrid corn could be protected as a "trade secret", a
legal status which still accords the breeder the maximum in long term
proprietary rights.  But hybrids of many species are not particularly
appealing to consumers, so in 1970 breeders succeeded in obtaining the
"Plant Variety Protection Act" (PVPA).  This gives patent-like protection
to sexually propagated plants, with the proviso that farmers and breeders
can reproduce ti as much as they want for their own purposes.  The original
PVPA had an exemption for the six Cambell's soup vegetables, but by 1980
breeders were able to get an amendment that included those too.
        After working so hard to develop a property-rights scheme in which
breeders could still use the protected material in further breeding, a new
twist was added by molecular biologists and the US Patnt Office in the mid-
1980s.  First they were granted "utility patents" (same as given for a
mechanical invention) for microbes, then for plants, and finally for
animals.  This was a blow to breeders in that utility patents do not
allow breeders to use each others' creations.  (That might have a beneficial
impact on the commercial gene pool.)

        So if you have purchased a plant marked "patented", it is probably
something that is protected under the 1930s Plant Patent Act, and only for
asexual propagation.  Feel free to propagate it for yourself.  However,
if it is protected by a utility patent (I don't think anything much on the
market is, yet), your perogative to do this may technically be restricted.
(But feel free anyway :)).  If you buy plant material that is marked "PVP"
then you can't propagate the seed and sell it to anyone.  If its a hybrid
you can do as you please with the seed.

        The European community has somewhat different laws.