Is it against patent to cross pollinate with a patented apple?

If I had a Rosetta type trademarked apple tree, I can’t sell the tree, scions, propagate, or even sell the fruit without a license. If I have a tree (legally), and I use the pollen and cross it with something else, is that against the patent laws? Like if I crossed a Grenadine with some Noname apple or even a popular apple like a Golden Delicious. The result is not a Grenadine, but I did use it’s traits.

This is assuming I created something good and then sold the result.

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It’s 100% okay to use a patented plant in breeding to develop a new variety. It would only be restricted if it were a gene from the plant that was patented rather than the plant. For example “Round-up ready” plants are illegal to propagate because their manipulated gene is owned by Monsanto and it really doesn’t matter what the actual plant is that carries the gene.


Sure you can sell fruit of a trademarked tree. (You may have to do so using some other name besides the TM one.)

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@JohannsGarden @beforeIdie

Many farmers don’t like them growing gmo soybeans next to our farms that are not gmo because they contaminate our seed with gmo Oregon farmers may soon be allowed to sue for harm from GMO crops .Similar results were found with dicamba use Jury orders Monsanto, BASF to pay peach farmer $250 million in punitive damages - Investigate MidwestInvestigate Midwest . There has been improper public information U.S. farmer lawsuit filed against Monsanto over GMO wheat | Reuters . We grew gmo ourselves, ate gmos, considered them as safe as our government, scientist ,seed companies ,teachers told us. Everyone in America is very sick from something but Noone knows what. Many say we are sick from age we now live much longer according to experts. Many people refute this and say we are not living longer but less longer than normal. I don’t know I wasn’t alive to see how long previous generations lived but the cemetary dates appear to tell the story. Americans have obesity, strange neurological diseases, cancer, diabetes etc. .New technology is not always bad it can be very good Purple GM tomatoes may ward off cancer | Cancer research | The Guardian. Gmo foods are not allowed outside the USA in most cases. It could be the chemicals more than the gmo plant many experts think Do genetically modified (GM) foods cause cancer? | Cancer Research UK . Glysophate is in question now. It actually is thought to be a carcinogen Does glyphosate cause cancer? | CTCA . Gmo apples exist they are in the Midwest . These industries can easily add things like glysophate resistance to plants. Once the resistance is added the original idea was spray the entire field down with glysophate and all that lived in that field was the gmo plant with bacteria DNA built in so glysophate wouldn’t kill it. It was frequently done with cereal crops like soy and corn. We see both sides to patents , gmos, cross pollination. Everyone has an opinion. Now back to answering your question Arctic Apples: A fresh new take on genetic engineering - Science in the News is it against patent to cross pollinate ? It has been in the past with other gmos Monsanto sued small famers to protect seed patents, report says | GM | The Guardian
More information
Biotech IP Briefing: Genetically Modified Arctic® Apple Approved for Sale in the United States - HRFM Today
So your question " is it against patent to cross pollinate with a patented apple" yes it can be. It is important to note most patented apples are not gmo yet. Finally the actual legal stuff Intellectual property and trademark protections for fruit-growing plants are on the rise—and so are the lawsuits

Intellectual property and trademark protections for fruit-growing plants are on the rise—and so are the lawsuits

by Lela Nargi

07.28.2020, 12:56am



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Flickr/Mel McC/ Graphic by Talia Moore

Cosmic Crisp apples, Cotton Candy grapes, and Cuties are among the most fiercely protected fruits in the global IP marketplace.

Now is a good time to imagine a peaceful scene. Here’s one: In an overgrown field, a wizened, knobby tree hunches in the sun. In spring, it’s festooned in white flowers that eventually drop; in their place, small, hard, spotty fruits slowly swell.

Here’s another: In a grassy, sweet-smelling orchard set across gentle hills, diminutive trees stand in tight rows. In between their leaves burst clusters of large, ruddy, unblemished fruits, ready for harvest.

Both the solitary tree and the orchard trees bear apples and are members of the ancient genus Malus that originated in Central Asia. Other than that one detail, though, they don’t have much in common.

Kate Evans, a pome fruit breeder at WSU, tasting breeding selections in the lab

Washington State University

The first tree likely sprung up wild after a bird pooped out the seeds of some gobbled fruits. Bitter, astringent, possibly mushy, decidedly unlovely, its apples interest only woodland animals and, possibly, an energetic cider maker looking to concoct a complexly flavored brew.

The orchard trees are cultivars developed by breeders over as many as 15 years, then produced in nurseries by grafting twigs, called scions, onto rootstocks. Crossing species traits, breeders aim for an “eating profile”—crispness, sweet/acid balance, maybe a novel anise flavor—that consumers will flip for. Intense marketing campaigns accompany some of these apples’ arrivals in the supermarket. Envy, Pink Lady, and the hotly anticipated Cosmic Crisp developed by Washington State University (WSU) and released last year: These are patented, trademarked brands, grown under licensing agreements, that generate a lot of buzz and, potentially, even more revenue.

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These days, not just apples but many of the grapes, cherries, apricots, plums, peaches, berries, oranges. and pears we eat are protected by intellectual property (IP) frameworks of one kind or another. Some detractors say the tilt towards IP represents a bid by powerful companies to take unreasonable control of our food system. Proponents, though, say IP is essential to keeping an ever-more global fruit industry alive and flourishing. And some players are willing to take legal action to protect what’s theirs.

The roots of fruit IP

American breeders have long used the concept of IP to protect their fruit varieties against piracy; in the mid 19th-century, that meant illustrating and cataloging them, according to Smithsonian Magazine.

The Plant Patent Act of 1930 made it possible for breeders to more formally protect a cultivar reproduced asexually, which means it’s made, not from seeds, but from pieces of a “mother” plant so that all offspring are identical clones that yield identical fruits. To score a plant patent, a cultivar had to be genetically new, “distinct, uniform, and stable,” according to the United States Department of Agriculture’s Office of Technology Transfer. Such a patent is granted by the U.S. Patent and Trademark Office and lasts 20 years.

“It means someone can’t take your plant, produce thousands of it, and not pay for it.”

In a common scenario, a patent is held by a breeder, whose institution, via its technology transfer office, grants a license to a nursery to reproduce trees. Commercial growers who buy them pay a royalty of $1 to $4 per tree. “It’s a way to control propagation,” said Cornell University berry breeder Courtney Weber. “It means someone can’t take your plant, produce thousands of it, and not pay for it.” It’s also a way for a university to recoup some of the money spent during the lengthy breeding process: developing plants, growing them out, selecting those with promise, conducting field and consumer trials.

Newly germinated seedlings in the greenhouse at WSU

Washington State University

Patents for fruit weren’t pursued much for the first 40 years of the Act. “When I got into the business in 1975, a university breeder would find a good variety and allow nurseries to propagate it” for free, said Phil Baugher, president of Adams County Nursery in Aspers, Pennsylvania, which sells apple, pear, plum, peach, nectarine, and apricot trees to growers—most of which are, or once were, patented.

That changed with 1980’s Bayh-Dole Act. The Act made it possible for federally-funded organizations like land-grant universities to hold onto the title of their inventions; they were now free to patent and license those inventions and to make income off of them from the private sector. Land-grant breeders teamed up with growers to produce fruit they could both enthusiastically throw their weight behind. Fruit like the big, juicy, crispy Honeycrisp apple out of the University of Minnesota, which had its patent filed in 1988, hit the market in 1991, and by 2014, was a consumer favorite. Bayh-Dole was the start of a trend, wrote Los Angeles Times’ David Karp, of land-grants acting “less like researchers and more like businesses.”

What’s in a patent?

The U.S. grows over 11 billion pounds of apples a year; they’re our most-consumed fruit. But patents have become de rigueur for other clonally produced fruits, too. And they don’t just benefit universities. The U.S. berry industry, for example, is dominated by Driscoll’s, a private company that develops cultivars in-house. They flourish at different times of year, in different settings and locales, in order to keep full berry boxes on produce shelves all year long.

“Only Driscoll’s growers can access Driscoll’s varieties, but the growers don’t own the plants—they just rent them for the season,” said Weber.

The USDA, too, files patents for some fruits it releases, like three new peach varieties meant to help southeastern growers adapt to a warming climate. Peach names are virtually unknown to consumers; that makes them interchangeable under supermarket PLU codes, to give the short-lived peach season longer legs.

“Only Driscoll’s growers can access Driscoll’s varieties, but the growers don’t own the plants—they just rent them for the season.”

Unsurprisingly, where there’s revenue at stake, lawsuits follow—despite the fact that Baugher says within the U.S.’s insular fruit industry, growers can’t afford to be “the guy caught stealing, because you will be shunned.” But theft still occurs, as in the case of California growers who in 2001 illegally obtained and propagated two table grape varieties developed and owned by the USDA.

Patent law also covers wonkier issues. In 2017 and then again in 2019, a well-known private strawberry breeder was sued—first by his former employer, University of California, Davis, for using genetic materials he created while working for the university (the university won); then by his competitor, Driscoll’s, for developing “progeny that resulted from unauthorized crossbreeding with Driscoll’s proprietary strawberry varieties,” the second lawsuit alleged.

Should growers be allowed to produce a patented fruit variety developed by the land-grant university in their state? Growers in Minnesota thought so, and sued the University of Minnesota over the right to grow SweeTango apples (the growers lost).

Another thorny issue: It takes at least five years to get a new fruit to market and even longer to get consumers demanding an apple by name at the store. “We get fan mail on some of our varieties, but that didn’t always happen,” said Susan K. Brown, longtime apple breeder at Cornell University. Her program has released 65 apples since the late 1890s, with three more on the way. By the time momentum has reached a fever pitch, the patent has likely expired and with it, a breeder’s right to royalties. This happened to Honeycrisp, the patent for which expired in 2008 and which fruit folks recall with an audible shudder.

A group of Washington apple growers discussing pros and cons of new selection trees, providing input for Kate Evan’s decisions whether to release them or not as new varieties

Washington State University

Enter trademark

“A trademark is a whole ‘nother landscape,” said nurseryman Baugher. “The whole idea is that the fruit itself is a brand, and you market it under that brand name,” he said. “Anyone can produce cola but they can’t market it as Coca-Cola.”

A registered trademark technically never expires, even after the patent has. That means someone could grow a mandarin orange cultivar once its patent is up; they just couldn’t sell it under the Cuties name, which is a trademarked mandarin brand that commands a premium price.

The trademark’s real power comes from the promotional push behind it, which ensures that all costs—from registering a fruit with the patent office, to hiring a company to come up with an ad campaign—pay off. “If you can develop a market based on a brand, that enhances the chances to do well into the future. Growers are beginning to appreciate that; they put $30,000 to $50,000 into every acre of orchard and they don’t want to pull that up because it’s become economically non-viable,” said Bill Howell, manager of fruit nursery organization Northwest Nursery Improvement Institute (NNII).

“The whole idea is that the fruit itself is a brand, and you market it under that brand name.”

For the whole brand caboodle to work, “you need something unique, with very high quality” to compete with some 50 other branded apple varieties, said Baugher. A breeder might license a nursery to produce trees to sell to eligible growers, possibly members of a “club” who have exclusive rights; royalties are collected both on bushels of fruit sold and on each tree. The nursery probably hires a managing company to file for a patent and a trademark, plus secure similar rights around the world, then make sure growers are producing fruit according to rigorous specifications—a so-called managed variety.

Proprietary Variety Management

A new branded red flesh apple, the Lucy® Glo.

Breeders of these sorts of “commercially important varieties,” said Edgar Krieger, secretary general of trade association International Community of Breeders of Asexually Reproduced Horticultural Plant Varieties (CIOPORA) based in Geneva, are the ones who “might consider going to court.”

The benefit to consumers of managed fruits is that “they receive a good consistent quality product under that brand and know they can trust it,” said Howell. NNII’s 13 members have exclusive, 10-year rights to grow Cosmic Crisp apples in North America. Brown at Cornell is releasing two varieties—RubyFrost and SnapDragon—to New York State growers who are members of the Crunch Time Apple Growers club.

She’s confident about the apples’ future**.** “SnapDragon is going to take over the market for Honeycrisp,” she said.

Some in ag aren’t convinced this is the right direction for fruit. “My biggest argument against [managed and] club varieties is I’m not sure small growers can afford that,” said Lesley Judd, a plant scientist at the State University of New York at Cobleskill. “I see it as turning slightly into a monopoly on certain types of apples.”

Enforcing IP

Trademarking is especially applicable to apples, which people know by name and which are found in stores all year long under that same name. Kate Evans, a pome fruit breeder at WSU, said she sees similar opportunities for pear cultivars to become hot commodities—we know them by name, too, and they can also be stored for months. But while there are some trademarked pears already, lack of a decent dwarfing rootstock (rootstocks are also patentable and trademarkable) makes it expensive for growers to produce new pears on a large scale.

Grapes, though—patents for 100 varieties of which were sought in the U.S. in the last five years—are on their way, with a legal battle to prove it. American company IFG—developer of the now-supermarket-ubiquitous Cotton Candy grape—undertook “enforcement actions” against Chinese growers for IP infringement on six of its grape varieties, according to a statement released by the company’s PR firm. IFG declined to comment for this article.

The apple variety trademarked Sunrise Magic that came out Kate Evan’s program at WSU

Washington State University

“Lawsuits are on the rise for all crops, since [the field] is getting more and more international and there are so many more players taking part in commercializing,” said Krieger. Advances in DNA analysis can help make infringement claims easier to prove than they once were, but you have to catch an infringer first.

Lawsuits also come with risks. Courts in some EU countries are critical of proprietary rights on live materials and “regulate them strictly,” Krieger said. Even when a breeder wins, the suit likely costs more than he recoups which means breeders might choose to sue only if they think it’s worth it to send a message to future potential infringers, and after cheaper tactics—settlements for damages, making an infringer uproot his plants—have been tried and failed.

Fruit patents aren’t likely to fall out of favor, according to Brown (except in Europe, where plants obtained by “essentially biological processes” were deemed un-patentable by the European Patent Office’s judicial board; weaker Plant Variety Rights remain, though, and are enforceable country-by-country). With global markets twinkling brightly and invitingly in the distance, the NNII bunch is feeling bullish. Twenty-five percent of U.S-grown apples.) are shipped internationally and “those markets have demands that need to be met,” said Howell"


I guess the answer is, “Who knows?”. Maybe you’ll get sued, maybe not.

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The answer is yes you can be sued but the question is will they want to sue you? In the case of gmo apples if a large group of millionaires make a hypothetical company and patent and Trademark a supposed “super apple”. They sell it at $10 per apple as the best tasting apple in the world that reverses the aging process or other wild claim. Hypothetically you could be the farmer growing 3000 acres of apples just outside their 2 acre super apple patch. You have been a peaceful apple breeder for 50 years like the 5 generations before you. They sue you and as expected find super apple genes in your apples in your apple breeding project as expected. They are awarded 25 million dollars transferring your family farm to their wealth with no more than a 4 year degree and a promise of “super apple” that never delivered. It’s an old story as companies like Monsanto have sued family farmers who had little chance against a team of lawyers. Sounds farfetched correct? Believe it or not it happened because money talks. Most of us are ignorant to many laws we grow fruit but corporate farms have teams of lawyers who collaborate on how to best protect company interest.
Monsanto legal cases - Wikipedia

So after many years big fish get eaten by bigger fish and Bayer moved in for acquisition of Monsanto in 2018–,acquisition%20of%20Monsanto%20on%20Thursday.

I’ve used many of bayers products through the years pesticides and medicines and am aware they are a company of chemistry.

This is a history of bayer from multiple perspectives

So what are the current allegations?

There are lawsuits over the alleged things said Bayer accused of involvement in Nazi medical experiments on Jews

WW II was hard times for everyone and bayer made apologies for the companies former management Head Of Bayer Apologizes To Elie Wiesel For Holocaust | AP News

Before you grow patented things you might ask yourself who patented them and why. I’ve used many bayer products through the years and do use them to this day. I do not currently grow any gmo grains and won’t grow gmo apples in the future. In the past I did grow gmo grains and used Monsanto products such as roundup and other products Monsanto made. I’m not avoiding the companies products as they have useful products that nearly every household in America uses. At this time I only grow non gmo grains. My belief is that gmo products can at times make growing food possible to feed people where normally foods cannot be grown. That technology is being developed out of the belief that we need it. In the future humans plan to colonize Mars which will not be easy and chances are all food there will be gmo , patented, and trademarked. Humans have a past and the world 70 - 100 years ago or longer was a very different place. That’s what went into where we are today. Some places in the world today can grow no food at all without sprays and gmos. Will there be a time when apples are growing throughout the deserts? I think there will. Will colder climates someday grow more foods? I think it will. These companies developing technologies to produce food they consider better will guard their intellectual property rights by any means they have available to them. How much do their scientists and lawyers cost them?


There’s alot of good info here Clark. To reiterate though, if it’s just a patented or trademarked plant it absolutely CAN be used for crossing with other varieties to create new varieties. Only when it is a matter of a patented GENE within a plant does it become illegal to use any plant containing that gene for breeding work. Patented plant does not = patented gene, but IF a patented plant ALSO contained a patented gene that would be clearly documented in the patent text so there would be no ambiguity or gray area.



Thats correct thats why i say you have to know this stuff before you do it. As an example I can cross old home pear with Farmingdale but will not get ohxf rootstock. Their crosses were contaminated and old home x Farmingdale was really old home x Bartlett rootstock. So yes even though someone might patent these new rootstocks they don’t mind if you continue to improve them. So yes that is true in that instance. These gmo breeding companies even planned to protect gmo plants themselves in other ways years ago but there are problems with that technology currently Terminator Gene Technology - Types, Advantages and Disadvantages .
They patented the terminator gene technology as well which i believe they intended to use.
Monsanto and Terminator Seeds | Open Case Studies

How the heck do you know if it has a patented gene? That’s super gmo I guess. I’ll be careful, but what you say makes sense.

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Good intentions and plead ignorance has always been my philosophy


Patents are a matter of public record. If a plant has a current patent that info is supposed to be on the plant tag from the nursery AND the actual patent will be viewable and readable online. If there is a gene patented that will be specified in writing. Some very old patents are not viewable online, but they don’t matter because they’re long expired.

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The article you posted does bring up questions. They talked about does bring up some questions. My first question is should a patent holder be able to limit sales? The patent holders of cosmic crisp limit sale to only Washington which is super restrictive. Only those in 1 out of 50 states can grow it even though the tree is sold online. It is ironic but the patent is limiting the cosmic crisp apple success. No one wants to buy the apples in stores because it is so expensive to get but no one can buy the trees but Washington people. Also should a non profit truly be able to act like a business and charge heavily for a product. We are already giving tax payer money and the college is already charging out the wazzoo for students going there. The university creating plant cultivars are not exactly short on money.



Yes I don’t really have a dog in the fight so to speak I have my path carved out already. I’m aware of corporate farming practices because I’m farming for a business as well for many years now. All my life even before kindergarten i grew things. There is a value in growing gmo for a place like Mars. Wish they did all testing inside. Once they have gmo apples that can produce in sub zero temperatures they can grow fruit in space that’s pretty exciting. Callery pears are doing a better job of growing in adverse conditions in my opinion than any other rootstock. Imagine if they gmo it for space. Gmo Callery rootstocks on Mars would be great. It sounds sometimes like I’m down on science at times but I’m not. There is responsibility that goes with science and i dont think corporate farms should pick on smaller farms. In addition these companies must be responsible with their impact on humans. We are moving in the right direction I think but I’m glad the past events will not be repeated. Another words if keeping things non gmo works why not continue doing what works rather than harm our food supply. Growing food using gmo indoors or in a remote part of the desert or Antarctica sounds like a good test. We could do that rather than use our good farm grounds what does that prove for gmo? Organic growers have rights as well.

People want to go to Mars but that is super distant into the future. I remember watching a video on it and there is just too much that gets in the way given our current technology. That is why the date to go to mars keeps on going back.

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Very true gmo is not ready for starters. My callery pear rootstocks made by nature are great but gmo is not that great yet. As an example round up ready soybeans don’t work anymore as well because some weeds have grown immune they are adapting. A fundamental concept in life is to do no harm to fellow human beings in wht we do. Glysophate doesn’t kill those resistant weeds. Now there are claims glysophate harms humans after we used it for years. Our planet has a series of checks and balances. There is a price everytime people attempt to outsmart nature. We are not as advanced as people would have us believe. We have learned a great deal by science but there is much we don’t know. If one gmo apple gets its pollen into our breeding programs it contaminates everything and my many years of work growing non gmo apples will be messed up New Apple Seedling Varieties. Thankfully Kansas is not an apple growing state.

Eh it is nice being in a state that can grow apples and pears. They are one of the longest lived fruit trees that many cultivate. Plus they store super well. I have read Cascade pear can store upwards of 4 months and certain apples can store up to something like a year. If you are like me where your goal is not just growing super yummy fruit but also grow something that stores well and will help eliminate the store apples and pears are a must.