Thought it would be helpful to make sure any scions you are looking for or have are not patented. I use this search http://patft.uspto.gov/. It’s always good to know what your trading.
Here is an example :
click Quick search
Term 1 ginger gold
Term 2 apple
Select years 1790 to present
Plant patents expire 20 years from the filing date. Right now if the patent number is under 9,400 it has expired. If you GRAFT a cultivar the day before its plant patent expiration you owe a royalty fee. I do not believe having covered scions collected before this date constitutes the necessity for royalties. But selling (and I presume trading or just sending them) does.
While you can look for patents the way you describe in my experience only half the cultivars are known by their final cultivar name which is usually assigned by a marketing dept. Many are simply patented under their field location name (for example Co-Op 38). I usually look at cultivar vendor’s websites who should (but sometimes do not) list the patent number with their cultivar description. A plant patent number search for a plant will contain the designation PP##### followed by a 5 digit number, (for example PP09401) which may appear on the cultivar vendor website as just “(9,401).”
you can buy all proprietary trees on the planet without any kind of problem, that they were created to sell.
on the one hand we have the creator of the variety, which can be grafted trees or selling, also can partially or completely sell rights to their trees grafted else, for example:
zaigers genetics can graft and sell their trees but also can be sold at a nursery in New York or a nursery in Italy the possibility that this nursery grafted and sell 10,000 trees of the variety in the amount of $ 10,000, which already this paying royalties to reproduce legally 10,000 trees.
after you go to the nursery and buy a tree and the tree-patent costs 5 dollars and you also buy a tree and patent costs 6 dollars you are paying in this tree by tree $ 5 + $ 1 royalties, which , you have already paid the intellectual property and the purchase is legal
That is interesting. I was wondering why some places are still collecting patent fees even though the patent expired a couple years earlier. Most trees are probably grafted at least 2 years before they are sold.
Can’t find any info doing a search for Drippin Honey, Asian pear. Do you know how I can find info on this patent and Mishirasu? This may be helpful in determining whether they are the same pear or not.
There exists no patent on Drippin’ Honey. The variety with this name is sold only by Gurney’s and their associates, so theirs is the only commercial description available.
I know this is an old topic, and might be considered beating a dead horse. I’ve also been briefly in discussion of these topics.
I like the columnar apple trees. They are expensive. I like playing with grafting, too. My concern is whether some of these relatively recent varieties are legal to graft / propagate.
I spent a lot of time searching on several cultivars, specifically Northpole, Scarlet Sentinel, Golden Sentinel, Tasty Red, Golden Treat. I have not found patent info for any of these cultivars on the lists and patent searches I have done.
But, there is a complication. I did not find Blushing Delight either. But, after more searching, Blushing Delight is a pseudonym for Moonlight, which is patented. So could that be true for the others? I don’t know.
Here is one of the searches, in this case generic for columnar apples. I also searched under the individual names.
So can I conclude those varieties are not patented?
I realize there might not be an answer, and no one here is a patent atty offering free services but I just wondered about the general consensus.
My other thought is do nurseries reliably state if a plant is patented? Monrovia states Blushing Delight is patented but I didnt see that for the others.
‘Drippin’ Honey’ never received a patent, it never made it beyond patent pending status. There was once a trademark put on it’s name, yet as you can see the owner of the trademark canceled the trademark in 1989 TESS -- Error
Call me a skeptic but I am not sure it is as much about lawsuits as the ability to re-market the same tree again under a new trademarked name.
I am not sure about the laws in the US, but when I inquired about a patent, our govt. office was very clear, the letter stated that if a variety had held a patent, the original patent name must be included on the tag along with the ‘new’ name. As well, if a variety had been marketed for two years before it was patented it was no longer eligible for a patent. I wonder if this last requirement is what leads to some with trademark names rather than patents?
I did not think you were serious I am speaking of what I know for the Canadian laws ( but I don’t know much, just what they told me). USA is different I do believe, sorry I did not make that clear. I also know that if, for sake of argument, Moonlight was not patented under the Canadian patent laws none of the patent rules apply to Canadian growers. Trademark is another issue.
I followed the Starks info too, although I had connected Moonlight to Blushing Delight via another source, I think Monrovia. That did not happen for the Sentinel and other Urban apples. Fortunately, I did not buy that one, so it’s not on my list to ponder. But at least, now we know.
I had also tried to trace the Redlove apples, specifically Redlove Era. They really deserve patent protection. These are not just “me too” fruits, they have unique appearance and are disease resistant. I don’t know yet about taste. They spent years developing those varieties, in Switzerland. All I could find was other names, apparently contractions of Lubera (the developer) with description of red flesh apples. I still bet those are the ones, but all see so far is trademarks and leads that seem to end.
One thing I found regarding the “Sentinel” apple varieties, is Golden Sentinel was a cross made in 1986 in Summerland, Canada, application for protection in 1996, and protection in Canada expires in March, 2020. The same is true for Scarlet Sentinel. However, do the Canadian rights apply in the US? I recently saw a report that Honeycrisp is patented in Australia even though it is not patented in the US. Copyright laws also vary by nations.
The Urban Apples were developed in Czech Republic. So they might be just as confusing.
So question here on Sundowner and Pink Lady, the Patent appears to have expired (applied 1979), but they are trademarked. What does that mean for propagating? Can I propagate the tree and just not call it the trademarked name?
Drew I would check my trademark law and trademark category before giving that answer. A trademark costs a lot of money, far more than a copyright. I was in a business that was trademarked and everything was under copyright as well. You cannot steal and simply change the name. It is theft. I would never encourage anyone to over-ride a trademark.
but I just wondered about the general consensus.
I am speaking of what I know for the Canadian laws ( but I don’t know much, just what they told me). USA is different I do believe, sorry I did not make that clear. I also know that if, for sake of argument, Moonlight was not patented under the Canadian patent laws none of the patent rules apply to Canadian growers. Trademark is another issue.