Thursday, February 7, 2008

Legal protection of cultivar propagation

The fifth and last installment in this series covers the legal mumbo jumbo that is involved in the right to propagate and sell ornamental plants. The information here is summarized from my own notes taken in a class I took, and is not in any way, shape, or form intended to be legal advice. Now that I have that disclaimer out of the way, it's time for more teaching-and-learning in order to maximize my performance on tomorrow's today's exam. I finished this part around midnight, at which point my internet connection-which had been spotty since 11 pm-completely went out. I spent an hour and a half trying to fix it, only to find out that my internet service was down. I called the company at 2 am and went to bed. When I woke up, service had returned, which is why it only gets posted now.

Part 1-Plant growth medium
Part 2-Nutritional deficiencies
Part 3-Plant growth regulators
Part 4-Post-harvest longevity of flowers

[photo credit: Aggie Horticulture at Texas A&M University]

Let's say Makita's Perpetual Flowers has developed a new cultivar of her beloved Alstroemeria's (Makita and P1's wedding flowers, hi sweetheart!!)*. They could easily be propagated either vegetatively or by seed. Should I sell them through my seed division or through my vegetative division? Let’s say I decide to use the seed division. Darn it! Now everyone is going to be able to just take the plants that I have worked so long on to make just *perfect* and make their own exact copies by propagating vegetatively, and sell it way cheaper than mine. They can, because they didn't have to spend years developing it. They just bought a few of my flowering plants at $50 per plant (did I mention they were *perfect*?), propagated them in their own greenhouses, and now they’re selling them for $20 each. I could get a Plant Variety Certificate, which would give me the exclusive right to propagate them by seed. Now, even if someone does manage to propagate my beloved flower plant vegetatively, they would not be allowed by law to propagate or sell “Perpetalstro.” This option is only available to me because the plant is new (I'm the intelligent designer here), its unique and clearly distinguishable from other closely related cultivars, and I can reliably reproduce this plant to get offspring with the same wonderful characteristics. For 20 years I'm the only one that can propagate and sell Perpetalstro.

If however, I decide to sell it through my vegetative division, I could patent it, which offers protection by the 1930 Plant Patent Act. That'd be great. I have a patent, and no one can propagate it vegetatively. I have the parents, and I'm definitely keeping their identity a secret, and no one is allowed to propagate it vegetatively. This should be fairly failsafe. But a patent has a limited life span, 20 years, to be exact. After the patent is expired, anyone can propagate and sell as many of my beloved plants as they want. Of course, I'd have to make sure that none of the people working with me disclose the parents, because the Plant Patent does not prevent anyone else to make the same plant by creating their own hybrid from the same parental plants.

This ends the 5-part series written to help me do my last written qualifying exams which starts 7 1/2 hours from the time I write this. Now I'm off to get some zzzzzzzzzzz's. In the morning I will print the series out, read them over it one more time, and then head straight for my exam.

* This is actually not a good plant genus to use as an example, because Alstroemeria's are naturally cross-pollinators (meaning the mommy and the daddy plants are different individuals). This means that any plants you would get out of the seed would not have all the same desirable traits as the hybrid parent did, all the little baby plants would look different. Sort of a natural way to prevent people from reproducing your Perpetalstro. But I'm using it as an example, because I love Alstroemeria. It's our wedding flower (yoohoo honey!!), and right this moment I have a vase of senescing specimens right in front of me.

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