If it does turn out to be grown from seed and youâd like to patent it, you can protect yourself while sharing it with a limited selection of people.
What youâll want to do is to have anyone receiving scionwood from you sign the equivalent of a non-disclosure agreement (NDA), a legal agreement that allows the sharing of patentable information between people and / or companies without the sharing being considered âpublic disclosure.â (You donât want to have a âpublic disclosureâ event as it would put you on a one year clock to submit a patent application or you lose the ability to patent.) An NDA also normally includes a non-compete section in which the person / entity also agrees not to use what the NDA covers to compete against you (e.g., they are legally forbidden from trying to patent it themselves).
A lawyer who is good at dealing with intellectual property (IP) issues is the kind you want, and preferably one who has significant knowledge and experience in the area of plant-related IP. You donât want someone who is going to make a dumb mistake that ends up costing you, nor do you want to pay a lawyer with little or no experience in this area several hundred dollars at hour for a number of hours in order to learn enough background information to be able to help you.
It is worth (IMO) considering letting some selected people try growing the apricots (under an NDA / non-compete agreement, of course) on the condition that they provide you with feedback on their experiences growing the apricots. This way you could build up information on what zones and climate types the apricots will grow in, how they turn out, which diseases they are particularly prone to (or resistant to), etc. This information would be helpful in assessing the commercial value of your apricot.
HOWEVER, be aware that if you do go the route of an NDA / non-compete with some selected people, MAKE SURE (as best as you can) that the people involved actually intend to keep the agreement. From a practical standpoint, itâs actually more important that the people truly intend to stick to the agreement than that they signed a piece of paper. Anybody can sign a piece of paper and then go and break the agreement. If this happens, your only real recourse is to sue them, which can be difficult, expensive, and have a very uncertain outcome. The other problem is that if they broke the agreement you might very well not know about it at all - or not find out about it until the damage was already done. Thus sincerity is a critical attribute in anyone you might work with on this.
Finally, as part of any NDA / non-compete agreement, youâd want to make sure youâd thought through the details of what people should and shouldnât be allowed to do and made sure this was included in the language of the agreement.
For example, you might say that someone could have a maximum (for example) of ten trees of your type of apricot, whether received from you or grown themselves by grafting (in which case they would be required to report it to you). Multiple trees would let people collect a better quality of information on, say, tree survival rates in marginal areas (whether due to cold winter tolerance, disease / pest susceptibility, or other factors), average tree age before fruit production begins, etc.
You could also specify that people can eat the apricots themselves but canât sell them or give them away (to prevent seeds from being spread around to other people who might then grow trees from them), canât grow trees from the seeds, etc. (Iâm figuring that being self-pollinating, some seeds might produce something fairly similar to your apricot type.) Of course if you do patent the apricot and it gets sold commercially, people who buy one will be perfectly within their rights to plant seeds from it and see if they can come up with something similar, if that is something they want to do. So maybe putting restrictions on the seeds isnât something you want to do.
Patents that arenât especially complex cost about $15,000 each, ballpark, when all the costs are added up. If you earn a royalty of $1 per tree, that means 15,000 trees would need to be sold just for you to break even (not including all your personal time, etc.).
These are all issues youâll want to think about before making firm decisions of any kind.
