PPAF?

Wild Dog · Post by **Wild Dog** » Aug 16, 2007 4:05 pm

But of course it's pretty darn hard to imagine a hosta hybridizer taking on the AHS for patent infringement; word would get out pretty quickly and no one would want the whiner's plants.

If any organization should honor a patent it would be the AHS, if I had or controlled a patent I would take on the AHS first.

Don't really think it would happen that the AHS would fail to respect a patent.

Any organization that wants to use patented plants for fundraisers should respect the conditions.

Tigger · Post by **Tigger** » Aug 16, 2007 5:08 pm

So should some bean-counter at the AHS (and all our local sections) tally up patented plants after charity auctions, and remit the appropriate funds to the appropriate patent-holders (or their agents)? Are these rights (and the $$ distribution channels) managed by a central agency, in the way that ASCAP monitors performances of copyrighted music?

Like I said, for a charity auction where the plants are donated, caveat whiner.

woodthrush · Post by **woodthrush** » Aug 16, 2007 5:20 pm

And just how would the patent owner go about deciding that the plant in your hand is a division and not an entire plant? This might be possible to judge while it is one or two eyes but how would they know once the plant has reached say 4 or more eyes?

MollyD

The royalty tags. They are supposed to accompany any sale of the plant.
Pam

sugar · Post by **sugar** » Aug 16, 2007 5:56 pm

Tigger wrote:So should some bean-counter at the AHS (and all our local sections) tally up patented plants after charity auctions, and remit the appropriate funds to the appropriate patent-holders (or their agents)? Are these rights (and the $$ distribution channels) managed by a central agency, in the way that ASCAP monitors performances of copyrighted music?

Like I said, for a charity auction where the plants are donated, caveat whiner.

It would be just the same as copying CD's from notorious artists and selling them for charity

Bill Meyer · Post by **Bill Meyer** » Aug 16, 2007 9:09 pm

Hi Everybody,

Just want to make a few points.

The USPTO quote applies to all plants that qualify for a patent, not just hostas. That being the case, "use" of a plant can apply to many things that do not concern hostas at all. I personally don't see how anyone can claim use of a hosta, but there might be ways. If the patent were for a seed strain like many annuals, I could see use coming into it where the patented plant was one of the two required for an F1 seed strain. I can't see stretching that to cover pollen or seed from a hosta.

It's a little farfetched, but if someone came up with a hosta with a different scent and patented it, use would cover using it for perfume. Likewise if someone found a use for a wax on a patented plant.

Tigger brings up a close parallel with apomixis. Apomictic seed strains may be very important in the future in other plants, but I really doubt we'll see apomictic hosta. The ventricosa species is said to be apomictic but if it is it is a very poor apomixis. The seedlings can be a cross and often show variable traits.

I don't know what would happen if someone put say a lightning bug gene into a hosta. It can be done today if someone wants to. If the plant were fertile, and the gene was passed on that is. It might involve the owner of it taking out more than one patent. I don't know if they could get one for "glow in the dark hostas". If they owned the rights to that it would cover all offspring too.

The patent laws give the patent holder a set of rights he or she can enforce to whatever extent they wish. Infringements are not dealt with unless the patent holder wishes to, so how each person behaves will be different. Some will be after every dime, while others may not care at all.

The AHS should set a good example and not allow pirated patent plants in their auctions. Since each year many of the people who handle the auction are new mistakes could be made. I don't know of anybody who would try to get the money from the AHS though. Maybe somebody would sue for $1 to make a point.

.........Bill Meyer

MollyD · Post by **MollyD** » Aug 17, 2007 9:39 am

"The royalty tags. They are supposed to accompany any sale of the plant.
Pam"

But if these plants are donations to the auction the person donating them wouldn't necessarily have the tags. Assuming they hadn't divided the plant but had elected to donate the whole thing. It really is a nonsensical idea. Who is going to dig up their whole plant and give it away? They're going to divide and donate the excess as most normal humans would do.
I wish we had a lawyer here who was familiar with this aspect of the law because I really do believe it was written to cover commercial sales and not charity auctions or personal trades.

Isn't Wild Dog's son(s) lawyers?

MollyD

VThosta/daylilylover · Post by **VThosta/daylilylover** » Aug 17, 2007 10:22 am

Well this is confusing as I looked up patents and hostas after reading this post and had assumed that I wouldn't have any patented hostas. Wrong! I have 'Orange Marmalade' which is in the section "patent applied for". Now, does this mean I now have to be careful with what I do with this hosta? (I did not get any special tag with it).
Far-fetched, but do I have to keep the bees away so they don't spread its pollen to others? I would guess from what has been said that the owner of the patent wouldn't care what I did unless I sent it in to be TC'd, or otherwise set up to distribute it. But what if I gave a piece to a friend or even sold it and then they went on to do something like TC it, am I liable? If I (somehow) grow a hosta that results from the pollen of the OM getting to another hosta, how would I know? I could end up with an "orange" Stitch in Time (if I had that plant), and then what would happen?
Yikes...

Post by **Chris_W** » Aug 17, 2007 10:57 am

It sure does bring up some interesting thoughts. I wouldn't worry about the bees. You aren't using the pollen, they are, and I don't think we could gain much financial restitution from a bee lawsuit. I know I don't like honey that much

I'm certain that the main, if not only, reason to patent a plant is to protect the breeder (or discoverer) rights to earn money from that plant. That is certainly their right to do so. And the main way that they lose money is when their protected plant is divided or propagated in any way. It does NOT MATTER if the division is for sale or trade. There is no distinction between them - both would be asexual propagation. I believe most if not all patent holders are mainly worried about mass production of their plant without getting a royalty payment, but if people also start giving away that plant for free it could impact sales just as much at the nursery level and the nurseries would no longer have a market for an overpriced plant if people are just giving them away. That trickles down to the wholesaler and back to the patent holder.

If it is really okay to divide patented plants so long as you don't make money off them I would be encouraged to divide up some of our non-selling patented plants and give them away as freebies

kHT · Post by **kHT** » Aug 17, 2007 11:25 am

It is my understanding that these divisions are for personal use and not to be shared? Like Bill Meyer stated earlier it's just not hosta and we see this with other plants. It is also wise to keep the person that holds this informed on the plant, sometimes they will give you permission if they see you are going to abide by the laws.

VThosta/daylilylover · Post by **VThosta/daylilylover** » Aug 17, 2007 11:45 am

But what is the status of my 'Orange Marmalade'?
When I bought it I had no way of knowing about the patent and only by reading this post did I find the information (well, after going to another site). Did the retailer I bought it from pay a royalty? It just came with a stick that was hand-written. What is the purpose of the patent if the plants aren't sold with that identifying information? The seller had no way of knowing what my intentions were toward the plant.

John · Post by **John** » Aug 17, 2007 12:13 pm

Would it be wrong to imagine that the purpose of the patent/copyright is to prevent "big business" from taking a superlative new plant, such as a hosta, and propagating huge numbers of it, perhaps through tc? And thus making huge profits from someone elses' work... and also, marketing and selling these plants under the name the original hybridizer called them. But should it trickle down to where the average backyard gardener cannot divide an overgrown plant and give it away?

The largest percentage of hybridizers probably cannot afford the fees to patent or copyright their new cultivar, so must depend on charging initially higher prices, and hoping people will pay for a plant from the original source. We've mentioned elsewhere the idea that a tc plant might not always be true to the plant being cloned.

One fear might be that an unscrupulous grower might decide to tc a spectacular plant, then introduce it under another name... the plant standing on its own merits, not its name or that of its originator. And thus creating confusion in the marketplace, e.g., is Canadian Blue really Halcyon, or not.

It will probably come down, in the end, to purchasing plants from a reliable vendor, knowing they will be healthy and true-to-name. If a vendor chooses not to become involved in the patent/copyright issues, that might be a good path to follow.

Wild Dog · Post by **Wild Dog** » Aug 17, 2007 12:22 pm

Isn't Wild Dog's son(s) lawyers?

Obsessive compulsive collectors worry more than the average beer drinker, yet if you go to a sports bar on Sat during a football game with a bunch of beer drinkers one could feel that they also have worries!

Don't worry be happy!

My sons are attorneys and I posed this question; the answer in any tort is; "What are the damages?

If you buy a patented plant and give a division to a friend then the damages are the loss of royalty from one plant.

Now, you could be sued for loss of 1 royalty payment, before a judge if you say yes I gave one away to my neighbor then there would be a directed verdict for the plaintiff for a dime or a quarter. Then the patent holder would have to make you pay the dime, if you refuse then the patent holder could attach your personal property and demand a sheriff's sale to recover the dime.

If your net worth is only a nickel then the patent holder would have to share the nickel with all of your creditors or they would have a claim against a portion of the nickel, if the patent holder refused to share the proceeds they could sue the patent holder for part of the nickel and then figure out how to collect.

I want everyone to send me a division of all your patented plants and I will fight with the patent holders. Minor problem for the patent holder, I owe more than I have so he’ll never collect a dime but it will be grand fun for everyone to watch him try to squeeze a dime out of me.

Ps He said; "Why are you bothering me with this question while I'm trying to change Sydney's dirty diaper"? Well I'm old and have to little to do.

woodthrush · Post by **woodthrush** » Aug 17, 2007 1:04 pm

I believe the royalty tags are actually where you pay your fee for propagating and selling the plant. You buy x amount of tags to sell x amount of plants. The tags say they must accompany the sale of the plant. Selling the plant, donation or not, without the tag means violating the patent. But then it all depends on how much $ the patent holder is willing to invest to enforce it.

Tigger · Post by **Tigger** » Aug 17, 2007 2:39 pm

If someone were to raise the issue of patent royalties at an AHS auction, then the AHS should bill the person for promotional fees involved in "talking up" the sale price of the plant.

My mind drifts to the gazillion divisions of Royal Standard—one of the very first patented plants—that have been passed around in the last 40 years…

Pieter · Post by **Pieter** » Aug 17, 2007 4:08 pm

My mind drifts to the gazillion divisions of Royal Standard—one of the very first patented plants—that have been passed around in the last 40 years…

Seems to me patents only hold for 20 years, but copyrights are in perpetuity, which makes an interesting twist to Bill's earlier comparison of the two means of collecting royalties for one's fruits of labor. So, the patent on RS has long since run out...

I'll be the first to admit I have been the recipient of gifted plants -not just Hostas- that are currently being sold as PPAF and I bet I'm far from the only one. No plant patent holder will go to the expense of pursuing the prosecution of some poor soul who decides to spread his wealth so to speak by sharing a division or two with a friend, just like the RIAA is not going after you for sharing burned copies of your CD's with a friend. Make the music available on BitTorrent and that's a different story, just like it would be for an unauthorized person to do a TC batch or 2 of a patented plant and offer them for sale commercially in quantity. Patent and copyright infringements are only pursued for the big fish in that game, as an individual hobbyist/collector it is not worth the patent holders time, money and effort to pursue it.

Having said all that, there is a moral issue involved here. Do onto others as you'd have done to you.

John · Post by **John** » Aug 17, 2007 9:53 pm

Patents run for 20 years, and ROYAL STANDARD was first hosta patented, by Wayside Gardens, in 1965; so, expired.

A copyright would have run for 28 years, with an automatic extension for 67 years. (2060).

largosmom · Post by **largosmom** » Aug 17, 2007 10:14 pm

Very interesting discussion. So from legal question to good manners question...

Assuming one realizes a hosta is PPAF, and you want to share a division with a friend, or offer a piece for a charity auction, is it then expected to ask permission first?

How do I know if something is PPAF? Google?

Laura

Roxanne · Post by **Roxanne** » Aug 17, 2007 10:54 pm

I know I posed a question earlier about....if sharing a div. for trades was considered the same as asexual propigation and I refenced having the plant tisue cultured for profit as being the reason. I really never thought about plant division as being a form of asexual propigation, if you bought it and it was yours to plant in your garden, later dividing it to share. (But, that is actually the Ultimate way to propigate a Hosta asexually, DUH)

Tigger, I know for a fact that the AHS does not allow patented plants to be sold as auction $$, and yes, they do keep track.

Nathalie23 · Post by **Nathalie23** » Aug 18, 2007 6:32 am

I thought PPAF was an hosta's family like the Lakeside, Kiwi, etc...

When I bought my Liberty PPAF, I was not informed of that information

Tigger · Post by **Tigger** » Aug 20, 2007 2:56 pm

How do I know if something is PPAF? Google?

For registered hostas, there is a checkbox for patent that shows on the electronic/online version (http://hostaregistrar.org). You cannot currently search that database or Hugo's database (at Hosta Library) for "patented Y/N."

For a plant you're purchasing, it darn well better say PPAF or PP on the tag.