CP "intellectual" property/clonal ownership rights

[flytrap]

I had just posted this thought on our Canadian CP forum... and thought it had a more international relevance. This discussion may have had already occurred, but here it is for all you legal and TC sorts:

Has there been any thoughts about who can make clones of registered cultivars?

For example... can people make Tissue cultures of Nep x 'Judith Finn' or VFT 'bigmouth' or Sarr 'Ladies in Waiting' and still sell / trade them as these cultivated varieties? or, are these names and cultivars registered by the plant originators?

I ask this because I had got wind of an old rumour that a large CP supplier had at one time, had to destroy a whole mess of Nepenthes plants because the clone or genetic variety was owned by another grower.

So here's the question... can one make clones of various varieties of CPs without having to worry about "copyright" or ownership? For characters like me, I'm not into TC, but often make cuttings ... so what are the rules?

How do they enforce this sort of thing in the world of orchids?

David

[ICPS-bob]

I am certainly not an expert in this and the subject can be complicated. An excellent and detailed discussion can be found at
pitcherplants.proboards34.com/index.cgi?board=naming

My impression is that anyone can make clones of registered CP cultivars, without restriction -- unless that particular plant has also received a patent or the name has received copyright protection. I am sure someone can correct me if this is in error.

In addition, there may be a legal agreement between a particular TC lab and distributor that specifies the details of production and sale. If this agreement becomes a matter of dispute, then perhaps a remedy is to destroy the plants. However, this is separate from cultivar registration.

[marcel]

The law might defer by country but in The Netherlands any one can have a cultivar registered. There is sort of a patent bureau. This rights are limited though. I believe they are for 10 years and only mend to enable a nurseryman to regain its investments before it gets a free for all. Most cultivars are out of fashion after 10 years anyway.

As for the destruction of nepentesplants, thats not an old rumor. I say a video of them being burnt

[flytrap]

marcel said:

...

As for the destruction of nepentesplants, thats not an old rumor. I saw a video of them being burnt

Oh ... that's a bleedin' shame. All in the name of commerce Is this vid available for viewing on the net? ... morbid curiosity...

[marcel]

no, it is not on the net.

[BarryRice]

Hey Folks,

Countries might have their own weird specific laws, but the cultivar code itself does not have any provisions for being proprietary.

[maraxas]

The movie was Nepenthes @ Borneo Exotics done by Siggi and Irmgard Hartmeyer. You can find the video here: (edit: for sale here, not for viewing on the web)

www.hartmeyer.de/startframeneuGB.htm

Siggi is also a member of this board. Very interesting videos. I can't remember why they were burning the plants but something to do with licensing. The burning video was done as proof that all the plants were burned.

[BarryRice]

This is simply astounding to me.

I made the decision long ago that I don't want to try to make any kind of significant money off selling plants. Not that I'm badmouthing anyone trying to make either spare cash or a primary income from selling plants--not at all--but I decided I didn't want to go down that path. (Although I sometimes ask for postage/handling etc money.)

So when I see hobbyist horticulture and financial interests collide like this, I just shake my head in horror. Man.

[marcel]

Well Rob might be a pro but he looked on the video very unhappy to say the least. Close to crying as a term comes to mind.
It wasn't the only shocking footage on that DVD though, Siggi had just left his beach hotel when THE Tsunami struck and included some tape.

(I also saw some follow up footage from Thailand professionally made by our National Disaster identification team who were sent to Asia to help "clear things up" after said tsunami. That was even worse, but it does place things in proper perspective. There are regrettable things and there are DISASTERS)

[Clint]

So who burned who's plants? I'm unclear on this.

And they did this legally through a court order or something?

[maraxas]

Clint: Rob burned the plants.

Going from memory, the situation was Rob obtained the plants from a commercial grower a long time ago to help him in the early days or something to that effect. There was a falling out of some sort and he no longer had permission to use or sell the plants that came from the originals. He pulled all the plants out, put them in a big pile and burned them. He shot a video of this as proof.

I apologize in advanced if I messed up (mis-remembered seems to be the political word for that these days) any of the details. I have the video and I'll watch it again and clear it up soon.

[maraxas]

Okay, it was bugging me so I looked back at the video. the plants were ones Rob bought under license when he first opened to establish his TC lab. 15 years later the company decided to cancel or not renew maybe? the license. According to the video it was either burn the plants and record it for evidence or risk being sued over license violations. It was a shame to see. It was garbage bags full of plants.

Marcel: Rob wasn't in the video so maybe you saw a different version when you said he looked upset? He did sound awful upset, understandably.

So back to flytrap's original question:

I'd assume you can make and sell any cross you want, and if it looked like the cultivar and matched the published descriptions, you could name it so.

I think you would run into a problem if:

A.

The plant name had a design patent or trademark.

or

B.

The plants were sold under condition of a license to make and sell clones.


(Just a guess based on what I know, nothing to back this up.)

[Aidan]

"Plant Patents" are unique to the US. Europe has a similar system called "Plant Breeders Rights". Many other countries have their own systems largely based on PBR. PBR on a plant is taken out to prevent mass propagation for resale by commercial nurseries. It does not prevent the hobbyist from propagating the plant. The cost of registration is considerable and the effectiveness of Plant Patents and PBR is questionable. Litigation is (very) expensive, as is the genetic testing required to prove infringement.

Trademarking offers no protection and does not prevent propagation. Propagated plants simply may not be sold under the trademark name.

Trademarking is a can of worms and may be used for nefarious purposes. As long as they are not on the market at the same time, it is possible to supply any number of different plants under the one trademark. Trademarks are not assigned to individual items (in this case plants) but to the person or organisation that registers the trademark.

[marcel]

maraxas: long time ago. I saw Siggi's DVD and i saw some pictures. Can't remember in which i saw Rob, but if you looked recently at the DVD, i don't think it likely that there are two versions so probably the pictures then.

[ICPS-bob]

A search of the CP Database
www.omnisterra.com/bot/cp_home.cgi

indicates that there are 2 CPs that have received patent protection:
Dionaea 'Royal Red' (AUPBR 464) Patent: AUPBR 464; application 93/069
Sarracenia 'Cobra Nest' (Booman) Patent: US Pat.Off. 6. 8. 2002

and 3 Sarracenia with a trademark name:
Sarracenia 'Cronus' (R.Sacilotto) Trademark: Titan (Botanique Nursery, Standardsville, USA)
Sarracenia 'Fireworks' (R.Sacilotto) Trademark: White Sparkler (Botanique Nursery, Standardsville, USA)
Sarracenia 'Tornado' (R.Sacilotto) Trademark: Vortex (Botanique Nursery, Standardsville, USA)