Opening a can of worms, they are.

It’s a dreary, wet morning in east Tennessee, so I’m going to propose a question.

What happens if someone produces a rose with Applause in its parentage and another patented GM rose from another company in its parentage? Both claim exclusive rights?

Ann, that kind of thing already happens with agr crops like maize. In medicine it is worse. It is called the patent thicket, and it slows down progress very noticably because most of the patents are on processes, materials and bits and pieces of technique. So there might be rights for 10 or more different patent-holders, all wanting a share in the newest biopharmaceutical. Often companies just buy out the competition to get the patents. Less commonly, if the competitor is a really good-sized corporation, they strike a deal of some sort.

Remember that a patent only holds in those countries in which it is filed. Otherwise it depends on trade secrets for management. That was what made terminator technology so powerful. It didn’t depend on the owner having to do anything once the game started, just sell seed that couldn’t reproduce. didn’t matter what country. That is stronger than IPR and will work in countries that ignore IPR (many of them are in Asia).

“What happens if someone produces a rose with Applause in its parentage and another patented GM rose from another company in its parentage? Both claim exclusive rights?”

Exactly: both claim exclusive rights and without both allowing at theyr paid price to both marketing is not possible.

Both are able to forbid any use of plants containing the genetic manipulation they performed.

Actually that it is allowed to market a plant bred from someone else GM one is questionable.

That it is happening in medecine is because there are a lot of GM appliance in pharmacy where industrial/lab processes as well as genetical manipulations are patented. It is much easier to GM unicellular organisms.

I do not understand why amateur rose hybridizers should worry so much. All these patents restrict only commercial exploitation of new varieties. If you are producing hybrids for fun and are not going to sell them you are not much concerned.

ilyaC, some people reading your comments here who are not legally well educated might just take what you say as legal fact… are you offering some legal advice here?

Do any of the Applause patents stipulate that… “If you are producing hybrids for fun and are not going to sell them you are not much concerned”.

Personally I think that people are asking for trouble if they use the GM rose in any crosses or as an OP. All it takes is for Suntory/Florigene to find the transgenes (all or part of them) in a seedling and you are most likely in violation of the patent. At least that is how it works in the US and Canada. In my opinion it is probably best to error on the side of caution here, regardless of how you feel about the patenting of genes and varieties, and regardless of curiousity. The Percy Schmeiser story is just one of many examples of how people have ended up on the wrong side of the patent law without realizing it.

oh and Jadea, you are absolutely right - it does look odd.

George,

This forum certainly is not a place for legal advises.

But all the patents are about commercial exploitations of discoveries and nothing else. Example: you have no right to multiply patented rose variety for profit, but can bud or strike it for your personal use in the garden.

Best regards,

Ilya

ilyaC, I can’t see any reason why legally correct advice cannot be offered on this or any other forum?

In fact I would welcome any legal minds here to add comment to the interesting issues you have raised.

I’m with Liz. Why bother getting involved?

I can foresee a world in the future where it will be increasingly difficult for people like ourselves to breed roses without risking some source of litigation.

It’s already becoming like the music business. Without means distribution and marketing a new rose might as well not exist no matter how good it is.

Hmmmm… opens up a new possibility then Robert… Rose Agents… isn’t it the agent that gets the new musicians some play… I’ll represent you and sprook your new roses… it’s actually not a bad idea is it…hmmm

Simon, it isn’t a bad idea but everything comes at a cost.

In the rose business margins are incredibly thin to begin with.

We have yet to see whether imports will begin to make inroads into the American market.

It seems just a matter of time.

I would not be surprised to hear that some of the major players cut back or eliminate hybridizing programs altogether. We’re on the cusp of some great changes here in the states.

Yeah, I foresee new introductions become leaner in quantity and older, prime introductions becoming wider in quantity.

btw, Simon, I think the term is Rose Pimp :slight_smile:

Exactly Jadae, it’s less expensive to offer fewer selections.

I don’t know how many of you got the letter today from Vintage Gardens announcing they will remain in business but greatly reduce selection in the near future.

They will also begin transitioning to a non-profit status, which I think incredibly wise.

ROFL @ Rose Pimp…

"you have no right to multiply patented rose variety for profit, but can bud or strike it for your personal use in the garden. "

That may be true in some countries where there is a “fair use” clause regarding patents, but in the USA I believe there is no distinction of this kind. US patents state that you are not legally permitted to propagate a patented variety for ANY purpose, regardless of intent or application. Of course, there is some discrepancy between what the law states and what people DO.

Exactly, it’s like recording music for one’s personal use.

It happens, A LOT.