Plant Breeder's Rights and Store Bought Fruit @.@

June.SkyJuly 20, 2012

Hello fellow Garden Webbers.

If a company/grower patents a variety of fruit/plant, sells those fruits to a grocery store - and then I buy that fruit from the grocery store and plant the seeds - are the seedlings that sprout still subject to PBR?

I've searched high and low across the internet but couldn't find any definitive information about this topic. I have found two threads where people have said that no, they are not subject to PBR anymore, but I just want to be sure so I can avoid getting into any sort of trouble selling a PBR protected plant. Not being a student of law myself, I have had a hard time deciphering PBR website explanations about protections/exemptions.

I hope someone will be able to help! Thank you!!

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THis is how I see it.

The copyright/TM/ whatever on a plant is for a specific species. For example, the copyright on a Macintosh apple, only pertains to that type of tree.

All of our fruits we eat are hybrids. They will not produce the exact same as the parent, therefore, I dont see how any copyright pertains to seeds.

And really, what are they going to do? Sue you for planting a seed? LOL that would be a horrible misuse of the court system, and waste of money.

Monsanto gets around this, because they have copyrights on certain genes in the plant. THey dont own the plant, just those genes, which is how they can sue farmers for "Stealing their crops". Im 90% sure this isnt the same as cultivated non GMO fruits.

That being said, the odds are you wont be charged/sued for giving away some scion wood even. You arent selling it, and you arent going to sell the product. Again, the laws are mostly for large orchards which have thousands of trees, rather then one or two.

As far as I know, the law only pertains to plants that are SOLD for profit, or used to grow trees, that are going to be used for profit. There are a lot of plants whos copyright have ended, mostly old time varieties.

    Bookmark   July 20, 2012 at 9:12AM
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calistoga_al ca 15 usda 9

If you grow from a seed it is not a vegetative produced plant and is not part of the patent. It is also not the patented plant that will grow, and it is not correct to label it as such, and can not legally be sold as such. Plant patents are good for the industry and allows the expense of developing a new variety to be recovered. There are plenty of wonderful plants no longer covered by patents that may be freely propagated. Al

    Bookmark   July 20, 2012 at 9:25AM
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Thanks for the quick replies guys.
I understand your points about hybridized fruit and how seedlings aren't grown through vegetative propagation, but don't plants need to be stable before big companies can obtain patents for them? I've read that stability is one of the criteria for obtaining the patents.

If the seed is stable and grows true to type, wont that mean my seedlings are technically under the company's patent protection and selling them would infringe those rights?

I understand and respect patents would be upsetting if I couldn't plant a seed out of fruit I bought from the store and do whatever I wanted with it. I've heard others say everything from the seedlings being completely free from patent protection to needing to pay royalties for each seedling sold.

    Bookmark   July 20, 2012 at 5:20PM
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Scott F Smith(6B/7A MD)

June Sky, the situation is confusing because there are several different patent laws that can apply.

Utility patents can be given for genetically engineered plants, their seed cannot be saved since the patent is on the gene which is in the children. Plant variety protection (PVP) patents are the standard fruit tree variety patents and do not protect the seeds since it is the clonal variety being patented. PVPC's are Certificates that protect the stable seeds you are talking about, they are like PVP but allow any individual to save seed for themselves and also any use in breeding work is exempt. What cannot be done to a PVPC protected variety is to save a lot of seed and sell it. Note that these are all different and if a plant has a PVP it probably doesn't have a PVPC, or vice-versa. Some genetically engineered varieties may have both utility patents and PVP(C) patents applying to them in theory.

So, the short answer is if you are not starting from a genetically engineered plant you are OK to save seed for yourself, and if you are crossing it with something else to make a different variety you are completely in the clear and can even patent this new variety as yours. See the link below for more details.


Here is a link that might be useful: details on plant patent law (pdf)

    Bookmark   July 21, 2012 at 10:54PM
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