Other than the part about reproducing from seeds, this is a pretty standard plant patent situation in the US. There are all sorts of restrictions on what you can patent, and the plant patent landscape is quite reasonable (unlike software patents). Plants like the cotton candy grapes in this post are really difficult to develop, and 20 years of legal protection is pretty reasonable. Remember this is agriculture- things move relatively slowly, and you cant corner the market of a variety in 20 years - you probably won't have patent protection by the time a plant reaches max market penetrstion anyway, but you'll have made your money during the first few years. And if you purchase patented varieties of fruit for your home garden (you might already have a couple!) you'll notice the patent fee for them barely registers - shipping costs are probably higher than the patent cost for your new citrus.
As I was alluding to though, there are restrictions, including that the plant has to be asexually reproduced and the infringing plant has to be identical to the parent, which does not apply to seed born progeny. Maybe there's some aspect of the plant variety protection act in play - I'm not as familiar with that - or maybe they're referring to using tissue from the aborted seeds present in seedless grapes to tissue culture out a clone, IDK.
I don't like plant patents like this as they are infringing on natural rights of people that have been around since the invention of agriculture.
I grew potatoes in my garden after some store-bought ones developed eyes. It never crossed my mind to check if they were patented first, and it's absurd that I'd have to.
The monopolization of everything is insane. We're binding ourselves up tighter and tighter in paper.
As long as we have a patent system, patenting plants (especially with the heavy restrictions on plant patent eligibility) is a reasonable extension. Since the origin of agriculture, you've had the "right" to copy your neighbor's cool new invention to till the soil better without issues. As a society, we decided that giving inventors patent rights for a limited amount of time is going to encourage innovation and investment into new technology. The founders thought it was important enough that we embed it in our constitution, and since the founding of this country, patents have been a driving force in industry. Maybe there's a better way to support innovation and make investment into r&d happen. I personally don't find the alternative arrangements people have tried so far all that compelling- but im open to the idea that this isn't the best way to do things. For now though, I think I'm getting a good deal out of a patent system where the creator of the cotton candy grape is able to spend 12 years developing a cool new variety because they'll get a return on their investment over the 20 years following their product's launch. Patents paid for a lot of the products I use day to day, and unlike copyright, patents actually expire after a reasonable amount of time.
This ignores all the controversy over the patent system allowing biological patents in the first place, and the many potential abuses and pitfalls, which seems very disengenuous to me. I don't think the founders intended the patent system for farming.
Patenting plants is one reasonable extension, and the one we've gone with.
But it wouldn't have been totally crazy if justices had decided that when you sell something that by its very nature self replicates, you cannot get too upset when it does exactly that.
Agriculture is like other goods in that it can have costly r&d we want to incentivize, so we might want to prevent copying. But it's a bit different, in that it comes preprogrammed and desperate to break all these rules.
I feel like there was a time this could have gone either way, but it was probably quite a while back.
IIRC it has something to do with tubers also being the part of the plant that is used as food[0]. Why is that considered an exception while something cinnamon, where the bark of the plant is eaten and also used in asexual propagation, is not? No clue. Really most of this boils down to "because the law says so" or "because the courts said the law says so."
I'm going to guess it has something to do with the process before the product reaches you.
If you buy a potato, it, on its own, will reproduce given the right circumstances. You can grow an apple seed, too, though that apple seed isn't likely to grow the same apple. You might get something out of an onion, though it is hard to grow a garden full of them without some work gathering seeds and so on.
You an patent certain types of apples, though, and the trees (though not so much what comes from seeds): Eating apples are generally clones. Getting a nice, sweet apple is a lucky thing - Johnny appleseed was realistically spreading cider apples and/or what we would call a crabapple now. In addition, many purchased apple trees are grafted onto different roots to make them more robust.
Similar thing with cinnamon. I've never seen fresh cinnamon bark for sale in a spice isle, just like I've never seen an apple branch for sale. Nor rootstock that wasn't an edible plant. Cinnamon bark is, at best, sold dried - and depending on the variety, it isn't even the entire bark, but just the inner layer. This isn't really what folks use to cultivate cinnamon, by the way [1], and i'm guessing that a lot of cinnamon patents are more geared towards extracting oils and drying/harvest methods.
Does it require actually "inventing" something, i.e. specific genetic manipulation to achieve the desired effect, or can you just try a bunch of things and go "whatever this is exactly, that's what I have a patent on now"?
For plant patents, it actually involves recognizing something. If a branch of your Apple tree mutates nd produces good tasting fruit, then by law, you can patent a plant that exists in only one instance in the wild prior to you recognizing its value and propagating it. That means that you can take that branch of the apple tree and grow it into a new variety and patent it. Because the patent is on asexually reproduced plants, you now have a patent on that variety, but you couldn't get a patent on a tomato for example where it's propagated by seed (good luck gettinga greenhouse to but tomato cuttings from you). The new strain can arise accidentally in the wild (but if there is more than one plant of that variety, then its nonpatentable! It has to be a freak variation that would not persist without your recognition or intervention). Or, it could be something you created through a breeding program, or by irradiation growing shoots (very common way of making new citrus varieties). But the patent is on the end plant, not the method.
These plant patents have nothing yo do with genetic manipulation/bioengineered/"gmo" plants. There, the DNA sequence itself, not the plant, is covered by the patent, its a whole different ball game
I agree, the entire patent system is insane and simply a power grab. If we eliminated the patent system, we would see the largest boost to economic growth in history as entrepreneurs everywhere suddenly entered former monopolies with much better products and services.
If you think about it, all law is a power grab. Laws are mire often than not unfortunately written to protect interest of those who've grown influential enough to make laws. Seed companies made it without these protections, so the only reason they should get it now is because of lobbying.
Uh, no, entrepreneurs would be stomped flat, having their ideas stolen and marketed by whomever the fastest mover was. Remove patents and it becomes the Wild Wild West.
Patents are effectively property rights for ideas. They give you protection of the law from someone else taking that property.
Now I do think there might need to be two categories, one for items you can physically interact with and the other code/algorithm. The code/algorithm would have much shorter protection with many more limits on it.
Now suppose there was a mechanism by which the Federal Government could exercise a public domain taking, still requires compensation. This would be something that should pretty much require extra ordinary public interest and perhaps maybe even a vote by Congress or similar committee that is "answerable" to the people
> Uh, no, entrepreneurs would be stomped flat, having their ideas stolen and marketed by whomever the fastest mover was.
That is how it works in theory. In reality, large entrenched interests with a large budget for attorneys, and a war chest of their own patents that can be used offensively, can easily stomp over small entrepreneurs. At best, the small entrepreneur gets an invitation to settle.
At least small folks have a chance now. Not having patents just increases the chances that these places will use the attorney budget to make and market ideas from others, only this time, the small person doesn't have legal recourse.
In other words, same outcome, different pathway.
The real solution to the situation you described is to have a better, more fair patent system.
I didn't see any information on it, but it would make me wonder: Did this mean they got started because they stole someone else's idea, and then get to continue after patents were reintroduced?
I'd be fine with code/algorithm patents or other forms of rights if we hadn't made the absolutely insane decision to apply copyright law to something as clearly function-oriented as (non-gaming) software. In fact, hardware was actually denied copyright protection for exactly that reason, and Congress responded by creating a separate property regime for "maskwork" that was far less restrictive.
Of course that's assuming that patents or copyright are actually necessary to allow the creation of new works and inventions. As far as I'm aware, we sort of just assumed that it would be the case when we stuck it into the US Constitution. We never actually produced any sort of proof that this would be true. There were previous civilizations that managed cultural and technological innovation without it, and there were also other legal innovations concurrent with the introduction of copyright and patent law (e.g. freedom of speech, republican democracy, etc) that also have accelerated the pace of such innovations.
We do know that under copyright and patent law, parties that infringe upon others' rights generally gain supra-competitive advantage that has to be remedied by a court. Clearly, if there's a law, then firms that break that law have competitive advantage. However, this is then extrapolated to assume that innovation is a natural competitive disadvantage and that we need copyright and patent law to ensure that it exists at all. This is extremely pessimistic; and probably not the case for at least some markets. Free Software projects generally do not collect licensing fees at all, and sometimes prohibit others from doing so, yet they still have regular innovation and growth.
We are growing around 100 - 130 heirloom tomato varieties every year. Officially in Germany/Europe these are not valid varieties for consumption, but only "ornamental plants", as these are not registered varieties (and one is only allowed to distribute registered varieties for human consumption).
As it is quite expensive to register a variety nearly no traditional farmer (or seed producer) does so, but sells under the label of "ornamental plant".
We just grow, we don't sell. But we share with our neighbors and friends. Our small local community likes the fact that our small garden is full of edible and historic plants from tomatoes, eggplant, peppers, cucumber, maize or pumpkin to pear- and apple-trees producing way more than two people can consume. We just like to grow.
We also have Open Source varieties, but also a lot of others tasting real good.
Reminds me of the halogen 'heating' lightbulbs I saw at a market in Hanover.
In the context of brexit, I'm generally pro-EU. But nobody's perfect, and the regulations around registering plants really felt like a very nasty anti-democratic power-grab. As someone obviously well-versed in it, what is your attitude?
Well. I have mixed feelings. Emotionally I feel the fact that (big) cooperations can own seed varieties (nearly like with patents) to be quite literally something that makes me boil.
In general I do not like the fact, that it is easy for others to claim something that replicates itself as "their own"/"their property".
On the other hand I saw a small tomato grower who developed and breed their own tomato varieties being ripped of by a bigger player, because they just couldn't afford to register a variety they painstakingly developed over years. The bigger player came, bought their seeds, grew the plants and two years later registered this variety as their own under a very, very similar name forgoing the necessity to develop the variety themselves. At least they did not push the other. smaller player out of the market - but they could have probably.
I would love a system that enables some kind of (short- to mid-term) protection for the development effort of new varieties. But I also feel it is a right of the people to grow from their own seedlings. Something that even hybrid varieties do not offer.
It is a difficult topic without quick and easy answers I fear.
But for me - we buy heirloom seeds mostly locally/regionally, grow them, keep our own seeds every year and regrow from that. We also share with other hobbyists.
Thanks for your perspective! Although I was referring to something a bit different — the state limiting the rights of people to grow and sell their own food, except for certain limited varieties.
You may be "selling ornamental plants" today, but surely, only as long as the government looks the other way. You could be "criminals" tomorrow if the authorities changed their minds.
I can think of few more fundamental rights than the ability to grow food to feed yourself and your community.
Other governments round the world, and through history, have taken this to logical extremes. I'm don't want to turn this into a slippery-slope argument, but there are some slopes you just shouldn't step on.
> You could be "criminals" tomorrow if the authorities changed their minds.
This is true.
> I can think of few more fundamental rights than the ability to grow food to feed yourself and your community.
Absolutely. And the moment most/all varieties are registered for corporations you do not even need additional laws. You could use currently existing laws to hinder people in growing their own food/food for the local community.
I feel, that in Europe at least on the level of the European Court of Law we have some guardian of basic fundamental rights. But as a worst case one would have to fight through all levels to have this decided.
If it quacks like a duck it might as well not be. If plants are significantly altered so as to be patent able, I would prefer if their name and shape and color is altered also. There is a a consensus of what each plant should be like each Millennium including its sugar content and other nutritional properties. Additionally for the consumer, any producer side advantages are inconsequential and should not be cognitively burdened by them.
As long as any actual innovative patents are not infringed by another corporate entity people are entitled to use, repair, brake anything they pay for as they see fit. Why must profit maximisation scheme forbid the natural right to plant your plant?
Is it really a tragedy that your average home gardener can't grow cotton candy grapes after he bought some from the grocery store? It's already pretty hard to do that, given that many (most?) of the commercial varieties are hybrids, so you can't really reuse the seeds to begin with.
Because the general principle of patents is that the owner is granted a monopoly on its use. You can add in exceptions, but it turns into a can of worms. eg. should "home" users be able to bypass patent laws in any product? what counts as "home" users? can other companies abuse this to bypass the patent system entirely? eg. you invent a widget, you patent it so competitors can't rip you off, but they sell widget kits: parts that allow a home user to assemble their own widget, exploiting the home use exemption. should that be allowed?
Well, in a way, home users do violate patents now.
It is not like anyone is looking all that hard.
Seeing an EULA on food doesn't seem like it will end well.
We are already struggling with who owns something. Software, in many cases results in what is essentially a rental without the advantages inherent in rentals, and lots of downsides.
Right to repair is a matter of growing importance.
Now food?
Frankly, I would much prefer do it at home get a broad exemption for self sufficiency reasons, if nothing else.
Arguably, nobody needs this food. I won't have anything to do with it.
Fine.
But the EULA will spread. Clearly someone has thought it time to maximize revenue in this way, and if they are successful, more will follow.
In a vague sense, no. Not really, as long as they do neither sell grapes/plants nor give away new plants and as long as they either destroy the plant before selling the home or alert the next homeowners that the grapes have restricted use. (grape plants live more than a year). No one will check, either, so long as use is restrained, and you aren't telling other folks how to do it with those particular grapes.
But on a larger scale than home use? Selling? Making jams or juices? It isn't really a tragedy, but someone did the work to develop the grapes, and I do think they should be rewarded for their labor.
Not to mention plants are much harder to clone at scale, since the parent strains can be kept secret which effectively prevents seed propagation. It’s easy to clone one for personal use, but to scale it out for commercial sale is much, much harder (depending on the type of fruit).
How about neighboring farmers getting sued because windblown pollen from the patented crops someone else planted mixed the patented traits into their crops?
I was curious about the legality of this, and the USPTO has a very detailed overview on plant patents: https://www.uspto.gov/patents-getting-started/patent-basics/... . I.e., this isn't a "EULA", it's just really a description of the patent rules that cover these Cotton Candy Grapes.
I thought it particularly interesting that for some reason "tubers" are called out specifically as not being provided patent protection.
Thats because plant patents cover varieties that won't really propagated themselves asexually naturally (or won't come true from seed). Tubers will keep propagating by themselves - you cant call out someone for infringing a patent on a potato if you miss one when harvesting and it makes more of itself. Although there's always grey area - plant reproduction is complicated! Tubers and seeds are however covered under plant variety protection, but that's a different legal code than patents.
Because some goof lawyer suggested it and the marginal cost of adding the text was ~0. A patent like that is a ticket to huge margins as far as agriculture is concerned. It makes sense that people would err on the side of protecting it.
Marketing perhaps? Maybe they think the notice makes the product seem exclusive and so high quality that it needs special government protection because everyone is dying to reproduce it.
These are cotton candy grapes. They are a horticultural variety that was produced through traditional breeding practices to increase the sugar content, reduce tartness, and add the hint of vanilla flavor. Those all come from traditional crossing of other genetic lines of grapes. The process was more difficult because cotton candy grapes are seedless, so each generation had to be propagated using tissue culture.
No, because the part of the plant that is being tissue cultured is the immature embryo. After pollination, the flowers of seedless grapes still produce an embryo, but the embryo stops developing when it is very small, and there is no fully formed seed (a process called stenospermocarpy). To grow the offspring of a cross, breeders have to dissect the immature fruit (the flower's ovary) and remove the immature embryo. The embryo is then transferred to tissue culture media where it is grown into a plant with roots and leaves that can eventually be transferred to soil.
In the breeding process, I am absolutely sure that during the breeding process they propagated using immature embryos. "Cloning" by definition implies vegetative propagation, and I'm sure when they finished the breeding process that is how they have propagated this cultivar.
If you are interested in more of the details, there is a wikipedia article on cotton candy grapes, If you look in the references, there are several articles with more on how the variety was produced.
For those unaware, the new wave of apple varieties (juice, not space gray) are also IP-encumbered [0].
The Honeycrisp's patent seems to have expired, but varieties that you will need permission to grow: Ambrosia, Cosmic Crisp, Envy, Jazz, Kanzi, SweeTango.
Oh interesting, apparently Honeycrisp could have been a trademark, which would have allowed them to sell them indefinitely under that name excluding others from doing so, but apparently that got messed up because the name Honeycrisp was included in the patent name.
* Johnny Appleseed planted from seed instead of grafting trees in part due due to his Swedenborgian Church beliefs
* Apples are extreme heterozygotes and each newly seeded tree produces very different apples, so you can randomly stumble on some brand-new delicious varieties among many thousands of cider-only trees
* The FBI cut down many of Johnny Appleseed's trees during Prohibition to combat hard cider production (I should probably read the source book for these claims, Michael Pollan's "The Botany of Desire", because this sounds kind of crazy)
Maybe this grape cultivar was really successful with this form of propagation and the producer fears an end-user (or nation state) might do just that, but they taste so good, they went to market anyway with something they may not be able to control.
As a biologist, I assure you not any tissue or plant can be casually tissue cultured. Maybe in theory, but in practice I wouldn't want to be asked to try and turn a bit of woody apple fruit stem or sepal tissue into a viable clone!*
Far easier to just go to the farm during the right season and grab yourself a scion to graft.
*I'm getting enough of a headache from one of my side projects trying to tissue culture some plant tissue that actually has a practical purpose- I'd rather stick to grafting when I can to avoid unnecessarily complicating my life!
There are many kinds of open pollinated varieties that can be grown from seed. Many still used for cider making today. The market varieties are hybrids and won’t grow true to parents like you said. In fact, they might not set any fruit at all and you might not even know for 8 years!
Wild apples tend to be small and rather tart or bitter. Commercial varieties are not grown from seed but rather from cuttings from a mother tree somewhere. Planting Apple seeds results in apples resembling wild apples and not the cultivated variety the seeds come from.
>Many apples grow readily from seeds. However, more than with most perennial fruits, apples must be propagated asexually to obtain the sweetness and other desirable characteristics of the parent. This is because seedling apples are an example of "extreme heterozygotes", in that rather than inheriting genes from their parents to create a new apple with parental characteristics, they are instead significantly different from their parents, perhaps to compete with the many pests.[51] Triploid cultivars have an additional reproductive barrier in that 3 sets of chromosomes cannot be divided evenly during meiosis, yielding unequal segregation of the chromosomes (aneuploids). Even in the case when a triploid plant can produce a seed (apples are an example), it occurs infrequently, and seedlings rarely survive.[52]
>Apples do not breed true when planted as seeds, although cuttings can take root and breed true, and may live for a century, grafting is usually used. The rootstock used for the bottom of the graft can be selected to produce trees of a large variety of sizes, as well as changing the winter hardiness, insect and disease resistance, and soil preference of the resulting tree.
To clarify, the reason you are likely ending up with a wild apple phenotype is not because that is intrinsic to the nature of apples. Otherwise, new varieties could never be developed. Crabapples are used as pollinators for farmed apples since apples aren't self fertile, and you'll end up with a hybrid. If you've got the space and the time (in this case a lot of time), breeding is a great hobby for anyone.
Another factor is that apples from seed take a lot longer to fruit, and as you mentioned, you can really control the growth characteristics of the tree with the rootstock. Unlike mangoes, the rootstock can result in the same scion variety of apple growing into a 50 foot tree or a 5 foot shrub- thats a huge amount of control!
Even those will tend to bear more fruit when cross pollinated, and considering how common apples and crabapples are across the US, you granny Smith or golden delicious tree is still likely to get cross pollinated by a local decorative flowering crabapple. But yeah, I guess if you grew out golden delicious in a protected greenhouse and stabilized the variety over a few generations, you might have a true from seed apple variety at the end of it
Apple trees aren't inbred - the seeds will not grow into the same variety as the parent. Usually, store bought apples will have seeds that produce inferior fruit since crabapples are used as a pollinator (apples aren't really all that self fertile) - so the seeds are hybrid crabapple seeds. You'll still get a tree that produces fruit that makes a good jam, but not great eating apples. Its not true that you're guaranteed to get an inferior quality fruit from planting a seed - otherwise we wouldn't ever develop new varieties - but the conditions that made your supermarket apple happen will result in a eating apple/crabapple hybrid more often than not. Because they don't really self pollinate, you're not going to be able to create a breed of apple that produces offspring generally identical to the parent plant, so the only way to keep a variety going is to clone it with grafting techniques.
Stone fruits are especially easy and fun to propagate on the same tree such as this. You can do this at home and it’s fun! Beware the most vigorous variety will eventually take over the tree!
They are all hybrids and the offspring will not have the same gene mix as the parent. You’ll end up with apples with random mixes of characteristics from the grandparent apples.
SweeTango is really quite there on the edge of a freaky mutant fruit. They often have oddly shaped and deformed seed cavities, opening up into the flesh in some weird ways. Many would have parts of flesh that look transparent and saturated in juice. They are tasty, but it's in-your-face obvious they aren't naturally evolved.
This whole thing seems perfectly reasonable to me. The analogy between DNA code and computer code seems pretty direct. They made the code, they should get the rights to the software/fruit. Don't like it? Write/selectively breed your own fruit.
To take this to the obvious parallel of software patents, patents get a lot of (deserved) criticism these days, but they exist for a reason, ans serve a purpose which I think is arguably still valid. Excessive patent length and patenting trivial things is bad. So is people stealing the hard work of others. There is a sane middle ground we should be shooting for, not wiping patents out entirely to the detriment of most (arguably all, in the long run).
Incidentally these types of plant patents AND software patents are the two categories that are patentable in the USA but not in most of the rest of the world, so they definitely straddle the line of patentability.
> than deal with lawsuits/enforcement of growing food.
Is there a reason why food should be treated differently than any other manufacturing process, which is also patentable? Or are you against patents in general?
It seems this is just marketing text dressed up as a EULA: "oh, these grapes are so neat they need a legal disclaimer!" The underlying law that protects the patent seems to exist whether or not you are informed of it, so there is probably no need to put the text on the packaging.
If you scroll down on Twitter, I have to say that the "joy" emoji with a picture of the stem in a glass of water is hilarious, however.
(Reminds me of the time I bought an Intel processor, which came with an Intel sticker. The sticker came with a warning that it was not to be applied to anything not containing an Intel processor. It is now applied to my Nintendo Switch. All I can say is that I'm glad corporate lawyers are expensive, or we'd all be in Sticker Jail by now.)
Related: After the invasion of Iraq, the US occupying force issued 100 orders as to how the new state is to be run. Among them is order 81, which prohibits saving and planting of patented seeds.
Unfortunately, that's not new. In recent years, I've seen those 'EULA'- patent-like warnings on many a fresh produce packaging.
How did it happen? Well it's very simple really. As with DRM, copyrights and patents the average member of the public couldn't give a damn about them, so only those with financial vested interests hold enough sway with politicians to have laws altered.
This isn't my idea, I picked the idea up from 'Mr Copyright' (Cory Doctorow) who wrote about such matters a while back.
It's ironic how GMO has been sold as the solution to poverty and starvation and then in reality it's just been used to prevent poor farmers from reusing seeds by slightly changing and copyrighting them. Yay for humanity!
Many GMO seeds are off patent now (in the last couple years the most important/useful patents have expired). Also several GMO seeds like Golden rice were carefully never patented to make it easier for poor to use them - and the poor still cannot get/use those seeds even though they are better.
No sane farmer saves seeds. Hybrids seeds yield much better than saved seeds, so it is worth the cost to buy new seeds every year. Obviously this depends on the crop - not everything can be hybrid successfully.
And you'll get downvoted pretty hard on HN and Reddit for being opposed to GMOs based on the extortion potential... well, it's "refreshing" to see that the fears are not baseless but reality.
I'm curious if they have a plant patent on this variety, it wouldn't be valid outside the USA and given that it's also written in French I assume they sell outside the USA. I think this text is probably meant to protect the IP outside the USA mostly if they have a plant patent, seems like an interesting legal strategy.
I've also had these grapes and never noticed the text, I wonder if it is new, and yes these grapes taste amazing! They are super sweet, and a slightly different almost artificial seeming flavor.
No, they sued a farmer who concentrated glyphosate resistant traces in his soybeans by spraying his field with that herbicide. Had he not done that, Monsanto would have done nothing (and likely could have done nothing). The courts properly recognized the farmers conduct as willful patent infringement.
And even with the full story it still doesn't make the law look great.
It's fine to infringe on the patent with as many plants as he wants, as long as he doesn't change the concentration of plants that have the gene in them? What if he had a field that was entirely contaminated via the wind? Would he be free to use glyphosate on that field? I feel like they still would have sued.
If the field were contaminated to that extent, he could have presented evidence that that happened, and used that to defend himself. But that's not how this contamination worked. He amplified traces far beyond what mere contamination would cause.
But apparently he was allowed to amplify those seeds in an even mixture with other seeds. The distinction is that he wasn't allowed to amplify only those seeds, while removing the normal seeds. And that's... a weird way to interpret the idea of a patent.
Except that he apparently would have been fine if he was just replanting everything and not applying any herbicides, with only some percent of the plants having the patented gene. Even though that would also be intentionally propagating patented genes.
Right. If he had not intentionally tried to concentrate the patented gene, he'd have been ok. He could have used the defense that he didn't cause the contamination, so Monsanto was to blame. But by deliberately trying to get just the altered seeds (or descendants containing the patented gene) he lost the ability to use that defense.
The difference is that if mere propagation were problematic, then Monsanto directly harmed him by the contamination. He could use the "unclean hands" defense if Monsanto sued. But if he took deliberate action to concentrate the genes, over and above what would normally be done just growing crops, that defense would no longer be available.
Monsanto's statements that it would not sue for just contamination can be viewed as immunizing them against being sued for that contamination.
If the field was wind concentrated it wouldn't be fully resistant, so he wouldn't be able to apply roundup without killing a large part of the crop. Since he never would apply roundup (it would kill the crop) the concentration would never build up over time.
You mean, Monsanto? No. Monsanto's patents were valid regardless of how the farmer got those seeds. The action of willfully concentrating the resistance genes is what got him in trouble.
Sounds like a pretty ridiculous system. Plants are living beings, and never needed humans in the first place to thrive on the planet. Wind and birds just do their thing. The courts can sue the birds and the weather gods if they want to.
You seem to be objecting not just to plant patents, but to agriculture itself. One of the first changes made to grain plants back in the neolithic was selection for plants that did not shed their seeds, so they could be harvested. These plants became dependent on humans to thrive.
Let's say someone decides to just take their grapes (Cotton Candy Grapes) and grow them in their farm and sell it as "Popsicle Candy".
At that point the company that originally bred the grape would sue and claim patent infringement but also for EULA contract violation, giving them additional ammunition.
If you can get additional protection by printing some text on a package, why would you not do it? They spent twelve years breeding this strain, it would suck for someone to steal it.
It sounds like the 12 year selective breeding is not a natural process. It’s not like someone walked into a field, found this grape, and patented it. How is this different from a chemist developing a chemical compound and patenting it?
All farmed food today was selectively bred. Corn and wheat weren't always as palatable as they are today. Fruits are all bigger and juicier.
At what point do we decide some life capable of naturally and spontaneously reproducing is patentable, and some life isn't? Should it extend to breeds of animals as well?
If someone dumps a pack of grapes by the side of the road, someone else comes along and picks the fruit that later grows, are they pirating fruit? If they decide they like it and plant their own garden, is that a patent violation? They never agreed to an EULA or even knew of its existence. They found it naturally.
I'm sure this all sounds ridiculous. That's precisely because it is.
The difference between patenting a chemical compound is a patentable compound is probably not producing itself naturally without constant human intervention. Someone, for example, won't be patenting oxygen. They can maybe patent a specific process for producing oxygen, but oxygen is naturally occurring. If a plant is growable from a seed or some other self-sustaining method, it'll continue to produce itself naturally without human intervention as well.
>The difference between patenting a chemical compound is a patentable compound is probably not producing itself naturally without constant human intervention.
So your argument is that if something can self-replicate, it shouldn't be able to be patented? Let's say we invent self-replicating nanobots in the future, should that be not patentable?
I think it's reasonable to patent the method of producing the nanobots from scratch. But if those things get loose and manage to reproduce on their own, how is the patent enforced? Is it reasonable to patent something that's self-sustaining?
Plant patents specifically exclude plants that can reproduce asexually, like tubers. Further, it is my understanding that these grapes cannot grow from seed. You have to culture a tissue sample. Granting a 17-year monopoly to the inventor seems like a reasonable trade off if the alternative is that no one would invest the time/money to create this fruit at all.
In the USA there are also "plant patents" which like software patents aren't recognized in most countries. It doesn't require it to be GMO, just to have undergone certain types of selection and breeding and be registered in the right way.
GMO patents are usually done via standard utility patents, the plant patent is actually a third category separate from design or utility patents.
Plant patents are a positive good. The public benefits from them (and from patents on new genes). The arguments otherwise are ridiculous when examined critically.
> Anyone know if this is likely to hold up in court?
It would already be illegal to grow clones of the plant anyway, at least for commercial use, so whether or not the EULA is binding is kind of irrelevant.
A colleague of mine has a small farm which he inherited and operates as part-time-business.
He once wanted to sell some surplus seeds from a harvest to other farmers on a facebook page or similar. He was quickly reminded that he was strictly not allowed to this, since he did not own the rights. The cooperative he operates under (basically the only way farming is done here) sold/gave him the seeds and the right to plant them and resell/bring the crops to them afterwards. Everything else was "unlicensed" and would be fined harshly.
That's just the way it is - particularly with newly developed variants. Breeding takes decades and needs to pay off somehow.
For a different view on this I suggest the SciFri podcast on the new "Cosmic Crisp" Apple. Or some research on the "Honey Crisp", "Pink Lady", etc.
I once read similar warning on a raspberry shroud I bought. It warned me not do cutting (https://en.wikipedia.org/wiki/Cutting_(plant)). I did not know of this technique, but now I know. So I do not know if these warnings are effective or get the idea across to people that you can do these things.
I've seen similar on products in the UK for muli-pack chocolate bars. They have something like "Mutlipack. This may not be used for individual sale" or something like this. It seems pretty crazy they are allowed to do this, you would think that once you have purchased the food item you are allowed to do with it as you wish (within reason).
You can sell them separately though, those words are just words, they aren't any kind of contract.
It's just a deterrent to stop shops from selling them separately because some customers might question it and then assume the shop is up to something dodgy.
There's a documentary on Netflix called Food, Inc. that goes into Monsanto's vendetta against farmers, suing them for intellectual property theft if their GMO seeds blow into their fields from a neighbors field.
The entire documentary made me very sad because I could not think of any solution
>There's a documentary on Netflix called Food, Inc. that goes into Monsanto's vendetta against farmers, suing them for intellectual property theft if their GMO seeds blow into their fields from a neighbors field.
AFAIK that's not an accurate depiction of what monsanto has been doing. According to wikipedia[1] monsanto says they won't "exercise its patent rights where trace amounts of our patented seed or traits are present in farmer's fields as a result of inadvertent means". I'm not sure what the exact that was discussed in the documentary, but the ones mentioned in the wikipedia article all have elements of the farmer doing something intentionally, eg.
>The case began in 2007, when Monsanto sued Indiana farmer Vernon Hugh Bowman who in 1999 bought seed for his second planting from a grain elevator – the same elevator to which he and others sold their transgenic crops.[17] The elevator sold the soybeans as commodities, not as seeds for planting.[17][18] Bowman tested the new seeds, and found that ,as he had expected, some were resistant to glyphosate. He intentionally replanted his harvest of GM seeds in subsequent years, supplementing them with more soybeans he bought at the elevator. [...]
> According to wikipedia[1] monsanto says they won't "exercise its patent rights where trace amounts of our patented seed or traits are present in farmer's fields as a result of inadvertent means".
Well that's telling, in that they still claim to have the right to shut down such a farmer.
While GMO regulation is a tough issue, this post has nothing to do with GMOs - the grapes in the post are under a standard plant patent and are non bioengineered.
There is a whole lot of BS that goes around about what Monsanto supposedly did to poor wittle innocent farmers that's really just a tissue of lies. It's remarkable how widespread this noxious slander has been.
Looking at your comment history, I cannot but wonder: 'are you paid by Monsanto?'. And if not, what are your stakes that make you defend them this fierce?
I wonder if you could drive this to generic by widespread disobeying behaviour? Thermos became generic because they lost control. Asprin because of war reparations. Hoover was a proper name. Deliberately jonny-appleseeding the living bejesus out of these grapes could make it next to impossible to say who dun it, from memory Grape Genome is quite plastic.
(I am not advocating this. I am asking if the patent would fall if you could demonstrate it existed in sustaining forms in the wild, widespread)
So the question you ask in parenthesis is different from the question you ask int he first paragraph. If you prove the plant existed widespread in the wild before the patent holder tried to apply for the patent, then yes, the plant is not patentable. Furthermore, if the variety is not reproduced asexually, then it is not patentable. This is basically plant prior art. You cant patent air conditioners because they already exist.
However, if you do what you mentioned in the first paragraph and go and propagated a ton of plants and make them widespread after the fact, then no you haven't invalidated the patent. You just infringed on it even more and probably have to pay a bigger fine. In general, you don't get to escape the legal consequences of an action by doing the action even more times. That just makes the consequences worse.
Oh, I get the bad guy is hosed, but what about the wildfire propagation? Sued unto the n'th generation? How long does the gene continue to be bound by patent law, once its propagating freely?
Suppose I drop a ton of these seeds all over the place. Some land in your backyard. Some of those take root.
The next year, you notice some volunteer grapes growing on your fence, taste one, and decide it's pretty good. If you give some to your friend so they can plant the seeds, are you culpable? If you sell some, are you culpable?
If its propagated by seeds its not patentable - so I don't think it's possible for that sort of scenario to rise. If you asexually propagated a plant and let a neighbor take a cutting, then I'm not sure. I'm not a lawyer, but that situation sounds similar to the what happens if you unknowingly buy stolen art and try to auction it type question. It would probably be a very interesting legal battle at the least - and the original propagator would probably be liable, but that's definitely an interesting scenario. I doubt the end result is going to be that the patent owner just loses protection.
I believe Monsanto sued a farmer accidentally pollenated with their patented genome, wind borne. I believe Monsanto won: he had to pay in some form or another. Not surprisingly, other organic farmers have sued when their non-GM crops were tainted by windborne patent encumbered pollen, and I believe they sometimes lose and sometimes win. It depends.
No, Monsanto sued a farmer who concentrated glyphosate resistant traces in his soybeans by spraying his field with that herbicide. Had he not done that, Monsanto would have done nothing (and likely could have done nothing). The courts properly recognized the farmers conduct as willful patent infringement.
indeed as you said: "The Supreme Court found that Schmeiser’s actions constituted infringement. Monsanto’s evidence at trial, estimating that 95-98% of Schmeiser’s 1000+ acres contained canola plants with its patented gene, convinced the Supreme Court that the infringing gene’s presence was too pervasive to be caused entirely by accidental delivery."
Those aren't plant patents, those are DNA patents, completely different from the plant patents being discussed here. The patent there is on the dna sequence, not the plant. If you took that dma sequence, cloned it into yeast, amd started fermenting the enzymes the sequences produced, you'd also be 8 fringing that patent - jt has nothing to do with the pollen or the plant, the plant just happens to be what the patented item is in.
Bioengineered means a specific thing in this context. I dont like using the term "genetically modified" because, well, everything is genetically modified, thats how agriculture works. Bioengineering narrows down what's being discussed to genetic modifications using synthetic biology tools from the field of bioengineering. Even more specific would be to say they aren't transgenic plants. Were getting to the weird point now where you can use synthetic biological tools like crisper to change the DNA sequence of a plant, but because you aren't introducing a new genetic sequence, the resulting plant isn't considered a "GMO" because the legal definition is more concerned about transgenic sequences than the use of bioengineering tools. These are all just really vague and highly politicized terms.
As I was alluding to though, there are restrictions, including that the plant has to be asexually reproduced and the infringing plant has to be identical to the parent, which does not apply to seed born progeny. Maybe there's some aspect of the plant variety protection act in play - I'm not as familiar with that - or maybe they're referring to using tissue from the aborted seeds present in seedless grapes to tissue culture out a clone, IDK.