I don’t think the “full throated response” is going to have much influence. From someone I know who is dealing with patenting plants, when contacting the patent office for information and advice, the ability to make it a “utility patent” was suggested and offered by the patent office employee. It only cost a few hundred dollars more than the plain plant patent and no proof of there being anything added to the plant to enable it to be genetically detected is required. If the introducer believes his/her plant might offer a benefit and they wish to deny that benefit to competitors, spending the additional $300 or so to scare off anyone sniffing around using your product isn’t much. Don’t read this as I don’t agree with your stand on it being a dangerous precedent. I DO agree. I hope I am mistaken, but I don’t think we have much of a chance discouraging the practice, other than to refuse to spend money on those so patented and to educate any who wish to be why they should consider avoiding supporting them, also.
I don’t disagree that a mere verbal response might, by itself, change very little–although one would hope that they might consider the substance of such a response carefully. However, if they hear nothing from us, then it will seem to be (and would rightly deserve to be taken as) our tacit approval. To change the big businesses’ stance on this issue, if reason is not enough, then it may be necessary to appeal to the public instead. One person refusing to buy their rose because of reprehensible (if legal), innovation-killing business practices will also have no real influence. Many people refusing to buy their rose might get more attention.
Even if every rose society, Face Book page rose group and all of us refused to buy another of their roses, they wouldn’t notice. There will be PLENTY of people encountering them in grocery stores, Lowe’s, Home Despots, etc. who will think it’s pretty and buy it simply because of that. What the vast majority of flowers of all kinds are sold by…“pretty face”, no matter what kind of a weed it’s on.
If that’s true, then the only viable strategy might be to work toward breeding improved strains of miniature roses using ‘Radtko’ and similar varieties, introducing a little healthy competition to the mix (it’s not exactly my taste, but I’d give it a try for a good cause). If they think Petite Knock Out is really so unique that it must be protected from further breeding with a utility patent, then I’d like to see it put to the test.
One of the things I wonder about is, where is the burden of proof? Imagine I use one of the parents of this rose in my breeding program and therefor I get roses with the same kind of resistance.
Suddenly they suspect something and do a DNA test. They will find out that a certain amount of DNA is equal to their rose. Is that enough? I would have done nothing wrong but they might suspect it to be a x generation seedling of their rose.
Who bears the burden of proof? And how can these things actually be proven? This seems all so messed up.
In most of the Monsanto trials, they tested for their marker genes then sued and it was up to the defendants to prove they DIDN’T plant Monsanto seeds. IF the patented plant contains marker genes, they can test for those genes. If your seedling also contains those artificially inserted genes, ones which would never occur unless specifically, deliberately placed there by the patent holder, you are guilty. PROVE you didn’t use their rose.
Hey Kim,
alright. This I understand but that is only possible if genetic manipulation is in place, as is the case with Monsanto.
So then what is the value of a utility paten when it cannot be proven? It would be different if the rose would have been genetically modified, which is to my knowing not the case.
If there aren’t specifically identifiable genes, then it’s a bluff. And, bluffs WORK. Back in the Nineties when Buck roses began being “a thing” again, Iowa State sent out a letter to every nursery listed in Combined Rose list as carrying them, stating anyone selling Buck roses “OWED” Buck’s family and Iowa State royalties for their “proprietary property”, Buck’s roses. Interesting…Iowa State paid Buck’s salary and provided him a place to do his breeding and research, but they didn’t patent his work. I believe of the 111 listed roses he bred or discovered, something like three were patented? How many did Iowa State introduce? I don’t believe they introduced any, though I could be wrong. Because of the wording of that letter, Ralph Moore declared he didn’t wish to sell ANY Buck roses as he didn’t wish to have to fight off any legal demands for royalty payments. I had written an article about the Buck Stippled roses, looking for more than the three or so which were available. Mrs. Ruby Buck, Dr. Buck’s widow, read the article and put me in touch with Kathy Zuzek who worked at the University of Minnesota and had inherited Buck’s work, papers and plants. We traded goodies for quite a while and I ended up with over seventy of his plants. I shared them with nurseries all over, Sequoia included. This letter triggered Ralph Moore to dump every one of them because Iowa State bluffed him and he caved.
When Mr. Moore’s roses were being donated to TAMU and Greenheart Nurseries, there were legal issues between the Moore family and Mr. Moore’s long time partners/employees. It appeared the only method for his partner/employees to be taken care of the way they were promised would be to file legal demands. Bill DeVore of Greenheart refused to accept the Moore roses until all demands were satisfied as he refused to have to hire attorneys and defend himself in potential legal disputes. An implied bluff and actually a genuinely ethical, moral gentleman who demanded the other parties be fairly treated. It worked.
How many of us have avoided acts and situations out of concern for litigation or other implied or bluffed threats?
Someone could challenge the patent head on:
“If the patent has already been issued by the USPTO, then a third party can challenge the patent at the USPTO by filing a request for reexamination of the patent. An ex parte reexamination can be filed by any person.”
It would be a slog of a fight against a rich and powerful corporation. Any breeder wanting to take it on would be challenging the one company they might otherwise call on to commercialize their own hybrids. It’s a hell of a conundrum.
If you can’t beat them, join them? They have a heck of a career opportunity open right now:
https://recruiting.paylocity.com/Recruiting/Jobs/Details/298498
If you like tilting at windmills, have the time, energy and MONEY and don’t mind spending them on such pursuits, go for it.
For those who are interested, the situation in Europe made an U turn last year. Who knows, if you can convince your MPs to do the same in the USA?
“In its new opinion, the EPO’s body adopted a “dynamic interpretation” of the exception to patentability that overturns an earlier interpretation of Article 53(c).
It justified this on the basis that that European patents cannot be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals.”
There is an integrity elsewhere in the World that doesn’t appear to exist in the United States. Here, unfettered Capitalism is king.
Hmmmm, I wonder if “PKO” has been trademarked in the EU?
the name of the rose is protected as “Zepeti”. https://euipo.europa.eu/eSearch/#basic/1+1+1+1/100+100+100+100/zepeti
The rose itself is also registered at the CVPO: https://public.plantvarieties.eu/publicConsultationDetails?registerId=20172341&breedersReference=MEIbenbino
So, en toto, where I come down on this is that major players should honor the patent–paying a royalty to Meilland for use of Petite Knockout in breeding. But us little guys, who will almost certainly not make net profit from playing with it, would not be on Meilland’s radar so we wouldn’t suffer at all. What do you think?
More of a joke but
Someone cross it with Applause:)
Plazbo,you’re evil…I LIKE that! LOL!
According to their environmental risk assessment, the transgenes in ‘Applause’ are not heritable through cross-pollination:
“In in situ hybridization analysis transgene transcripts were only detected in the epidermal cells in the petals of the transgenic roses. In combination, the breeding and in situ analysis results show that the transgenic roses contain the transgene only in the L1 layer cells and not in the L2 layer cells that generate reproductive cells.”
Do I understand all of that to mean that after all the tens of millions they threw at that “project”, it resulted in pretty much nothing? Not a blue rose nor a rose which should help produce other odd colors through breeding? What a bummer!