
How can I tell if a plant given to me is patented? - lignuist
http://gardening.stackexchange.com/questions/3808/how-can-i-tell-if-a-plant-given-to-me-is-patented
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tptacek
For what it's worth:

When people think about plant patents, they're usually thinking of the
Monsanto suits. I don't know that there aren't crazy patent trolls out there
suing gardeners, but as far as Monsanto is concerned, I don't think gardeners
have much to worry about.

If you read the Monsanto suits that have been published, the behavior Monsanto
pursues is planting unlicensed Roundup-Ready seeds and then spraying them with
glyphosphate-based ("Roundup") herbicides. You can spray Roundup without a
patent license. You can probably plant RR crops without a license. But if you
do both (commercially, at least), Monsanto sues.

The point of RR seeds is that they resist Roundup, which is a broad-spectrum
herbicide that will kill non-RR crops. In the commercial suits, it becomes
tricky to argue that you planted RR crops unwittingly when you are later shown
to have sprayed them with an herbicide that would have certainly ruined your
harvest but for inbred RR resistance.

The patent they have on the whole RR system may be totally invalid; I'm hoping
to have the presence of mind not to end up litigating that point. I'm just
saying, the likelihood of accidentally become a lawsuit target appears like it
might be overblown in some ways.

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bediger4000
I agree that people _usually_ think of Monsanto suits in conjunction with
plant patents, but the point that the article raises is valid. How can one
tell? If you can tell, don't we _all_ owe money to the heirs of whoever
invented corn, and whoever invented wheat? After all, copying is theft...

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tptacek
Like I said, if you want to argue that there is no possible validity to a
plant patent, that's something I'm not prepared to litigate. I'm just saying
that accidentally planting a RR plant in your garden or even your commercial
farm probably won't get you in legal trouble, because you aren't going to
spray them with glyphosphate.

~~~
bediger4000
How on earth did you get the idea that I'm arguing against the validity of a
legitimate, duely legislated and properly instituted legal entity like a plant
patent? In point of fact, I argued the exact opposite. I feel quite offended
that you attribute the exact opposite of what I wrote to me. I wrote that
copying is theft, and I implied that we all owe some money to the heirs of the
inventors of agriculture (there were probably at least 5 such inventors)
because of the continued use of said inventor's property.

What's your beef with that? Are you a pirate, or one of these anti-
Intellectual Property heretics/crazies?

~~~
tptacek
I'm afraid you may have figured me out.

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kevinpet
I'm not a patent lawyer, so maybe I'm wrong and someone can correct me, but
all this "how can you patent a seed" whining is bullshit.

The Monsanto patents are for the method of using a particular herbicide in
combination with the modified plant seeds. If you innocently get some Monsanto
genes into your organic soybean seeds, then you would almost certainly not be
infringing the patent any more than I could be infringing DVD patents by using
a stack of DVDs to prop up a wobbly table.

Has Monsanto ever sued anyone who was not trying to use the combination of the
GMO crops _and_ the herbicide they are tolerant to? I have never heard of such
a situation.

I've yet to meet anyone who claims to think it's bad for Monsanto to have a
legal monopoly (patent) on this process who doesn't also think that no one
should be using it, because it's either screwing with nature to use gene
splicing to feed the world, or maybe just because not having our crops ruined
by pests makes us soft and unworthy or some crap.

Read Mark Lynas's post explaining "I am also sorry that I helped to start the
anti-GM movement back in the mid 1990s, and that I thereby assisted in
demonising an important technological option which can be used to benefit the
environment."

[http://www.marklynas.org/2013/01/lecture-to-oxford-
farming-c...](http://www.marklynas.org/2013/01/lecture-to-oxford-farming-
conference-3-january-2013/)

~~~
bad_user
@tptacek's opinion is much better without resorting to phrases such as
"whining is bullshit".

> _Has Monsanto ever sued anyone..._

As a car driver in a crowded city I bend the rules all the time. Just this
week alone there were several rules I broke that could have lead to my license
being suspended, but because the city is so crowded, the probability of being
caught for breaking rules (such as going around a tram pedestrian refuge, or
forcing the yellow light) is close to zero, unless you end up in an accident.

There is a difference however in what is _legal_ to do and what you can get
away with. Our current legislation systems tends to make criminals out of all
of us. The example I just gave is a bad one too, because I know exactly what
rules I'm breaking and I know exactly the outcome if I get caught, whereas
with infringing patents you never know exactly what patents you infringe, or
the outcome of that.

There's also the issue of selective enforcement. The law should be the same
for everybody, otherwise if everybody is a criminal by default, the law gets
used to suppress people that are undesirable.

It doesn't really matter if Monsanto never sued anyone for using their
patented crops without the usage of the Roundup herbicide. The bigger issue is
that if you receive some seeds from a friend, planting them in your garden
will leave you on the wrong side of the law and you might not even know it.

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simonster
I agree that this is insane, but I'm not sure what the solution is.

With most patents, the company that developed the technology to be patented
has a unique advantage even without the patent. They have a better technical
understanding of the technology than the competitors, and they can incorporate
it into their products faster.

With crop patents, the patent seems far more necessary as an incentive to
innovate. If Monsanto can't patent their new seed, then anyone else who wants
to can also sell the seed, and Monsanto will never recoup the R&D costs. Under
this scenario, I don't see why anyone would develop new plants.

Assuming we want to encourage selective breeding/genetic engineering of new
plant species, what incentives can we devise that don't have the problems
posed by patents?

~~~
bgaluszka
> If Monsanto can't patent their new seed, then anyone else who wants to can
> also sell the seed, and Monsanto will never recoup the R&D costs. Under this
> scenario, I don't see why anyone would develop new plants.

Could the same apply to GNU or Linux or any other free software project or is
it far different thing?

~~~
a_bonobo
To develop free software, all you need is a PC, Internet and free time.

To develop free GM plants, you need workers, material (host microorganisms,
plant fertilizer), green houses, lab time, machines (PCR, sterile workbenches,
ideally a sequencer, PCs, maybe a fun electroporator, etc.), space for growth
etc. Also, the laws are strict - you can't just create GM-organisms in your
backyard, depending on the country you're in you have to be in a certified lab
with correct procedures for waste disposal etc.

The upfront costs involved in developing GM are much, much higher. But it's
definitely not impossible - there's for example an open source PCR machine for
self-builders, I can see more machines like that coming up...

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lukejduncan
Is this question what it seems? Can gardeners really get into patent trouble
from planting a seed?

~~~
Lazare
Short answer: No.

Long answer: The question is sparked by a recent court case where a farmer -
named Bowman - purposefully used unlicensed technology on a commercial scale.
If you are doing it by accident, or aren't doing it on a commercial scale,
you're perfectly safe. (Some reporting in the popular press makes it sound
like Bowman was unaware of his infringement or that it was an accident - a lot
of people are freaking out at the idea of Monsanto suing a farmer because some
patented seeds happened to be found on his property. If you read the court
case, it becomes clear that nothing of the kind happened, and that if it had
the case would have been thrown out.)

Really, it's just like every other bit of patented tech. If you're operating a
factory pumping out unlicensed Rolex watches, you've got some potential legal
liability. If you bought a fake watch in Bangkok, you don't. While I
personally have some very serious qualms about the patents on GM crops, the
current legal situation is, honestly, pretty sane. Hobbyists are perfectly
safe, as are farmers acting in good faith (ie, they plant seeds believing them
to be unpatented, or their seeds are contaminated by patented seeds blown
across their property line). Activists like to construct scary hypotheticals,
but the truth is rather more prosaic.

~~~
windexh8er
I think your first paragraph would likely be relegated to spin. While your
oversimplification of the problem makes it seem acutely cut and dry the short
response is: it's not that simple.

Like all other constraints of life in general, I think going lax on things
like a separation of an ill corporation and the direct corollary effect it
poses to something nature has originally derived is treading in unknown
territory. The fact that this simple question would have been laughable at
best 15 years ago showcases the downward spiral into everything being a legal
matter in the not so distant future. You may think this is counterproductive
activism but skim the history books. Look around you and reflect on the
choices that others have made to put your in your first world situation. That
can quickly change if there aren't people who keep those ideals in check and
balance out the corporate tendencies that often times spins out of control
when left to its own device. That is a path where morals take a back seat to
suits and dollars more often than not.

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brownbat
Have the person providing the plant indemnify you against future litigation.

Someone knows whether the material is patented or not, but they are up the
sales chain from you. If they agree to indemnify you against patent
litigation, then they know it's not patented. If they won't, then they either
didn't do their job in getting similar assurances from their supplier, or they
are hiding something.

In general, you work backwards through the stream of commerce indemnification
clauses.

It's ridiculous overhead for gifts between friends, of course. That's why, for
other areas of the law, like theft, we realized hundreds of years ago that you
should give people some automatic protections if they were good faith
purchasers. (Not 100%, jurisdictions vary, civil and criminal are different.)

Not sure why we don't borrow similar provisions for patent law, but I guess
Bowman v. Monsanto could do that (if it's not simply remanded on a
technicality).

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idleworx
The mere fact that this question was asked is a sign of things being badly
broken in the patent area.

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jamessb
As well as patents, there is another class of intellectual property rights
applicable to plants called breeders rights:
<http://en.wikipedia.org/wiki/Plant_breeders%27_rights>.

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gweinberg
Plant patents are just for clones. If you gre it from a seed, it is not
covered by a plant patent.

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pjungwir
Roses are also patented, so you're not supposed to propagate them by planting
cuttings.

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Ziomislaw
you can patent A FUCKING PLANT??? americans are batshit crazy if you ask me

~~~
drucken
Not sure where you live, but legally in the EU it is even worse, though
thankfully orders of magnitude smaller scale than the US at this time.

The EU directive "on the legal protection of biotechnological inventions"
(Directive 98/44/EC), implemented by all EU member states and even some non-EU
states as of 15 January 2007, states _"biological material which is isolated
from its natural environment ... may be the subject of an invention even if it
previously occurred in nature."_!

This goes even beyond an international agreement on IP rights (TRIPS). [1]

The main mitigating factor is that EU governments are not particularly IP
conscious and are terrified of the public backlash if they attempt to enforce
any bio patents - most Europeans have no idea DNA is patentable! In addition,
most of the infringers are actually related to the state due to very large
welfare systems or academia. Private companies do not have a strong or
irreversible grip in these areas, yet.

[1]
[http://en.wikipedia.org/wiki/Directive_on_the_legal_protecti...](http://en.wikipedia.org/wiki/Directive_on_the_legal_protection_of_biotechnological_inventions)

TL;DR. Everywhere is batshit crazy these days...

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nova
More IP craziness.

