How to protect a tomato variety from being patented by - Page 3

MrBig46 · February 22, 2022

Quote:

Originally Posted by Allisa

The Eurasian Economic Union (EAEU) is a free trade agreement that came into being in 2015 to increase economic cooperation and raise the standard of living of its members. Member countries include Russia, Armenia, Belarus, Kazakhstan, and Kyrgyzstan (see more info in Wikipendia).

EAEU is an effort to restore the Soviet Union under the leadership of Russia (nothing new). Only the former Soviet republics are in EAEU.
Vladimír

DK2021 · February 22, 2022

Some facts for the sake of accuracy.
There is a European Patent Office (EPO) and a Eurasian Patent Office (EAPO). Member states are not necessarily the same as those countries that are members of the EU or the EAEU, respectively, as the patent conventions are separate treaties. (I have never had a patent application filed in Russia, but I have had EAPO patent applications filed since Russia is a member of the EAPO.)
Utility patents on hybrid plant varieties are more common, but you in fact can get a US utility patent on an open-pollinated or inbred variety.

And I think Fred is right. If you have a open-pollinated/inbred self-pollinating plant like a tomato or soybean, and you want to protect your ownership of that variety's genetics, then you either keep it to yourself or be very careful about how you sell the seed/plant, e.g., with some legally binding agreement in place. Commercially available soybean seeds are at the moment at least not hybrids, because cross-pollination is manual and pretty much only done by breeders and not commercial seed producers. So soybean sales can involve an agreement that the farmer will not save seed for planting in a future generation. You can agree or disagree with this business model but that is how it commonly works. After all, no farmer is "forced" into buying seed from any particular seed company, just as none of us is "forced" into buying tomato seed from any particular seed company. But if you really want something that is being sold with a proprietary model in place, like many F1 hybrids and the aforementioned inbred soybeans, whether your reason is because SunGold tomatoes taste great or the soybeans are high-yielding or have a specific fatty acid profile, you pay for that choice. And honestly, I don't have a problem with that, since those varieties took work to develop.

Allisa · February 23, 2022

Quote:

Originally Posted by Fred Hempel

Back to the original question of this thread. If a "family" wants to completely "protect" their variety from use, they need to keep it to themselves.

There is alot of focus on "big" companies getting varieties (genetic resources) from "little guys" in this thread. But I would like to point out that the vast majority of "big" company genetics is also freely available to the "little" guys.

People dehybridize Sungold, Early Girl and countless other varieties and use the genetics to build new OP varieties. So, genetics flows both ways. Cases of "big" company control in tomatoes are hardly worth mentioning, and apply only to very few cases where gardeners most likely wouldn't want to grow the tomatoes anyway.

The though of spending time trying to prevent some far away big bad country from renaming something or using my genetics seems like a complete waste of time to me.

The other way to completely control a variety (with absolutely no lawyers needed) is to make a hybrid. SunGold can not be stolen, not because of patents and lawyers, but because the parents are a trade secret.

Love these points)))

MrBig46 · February 24, 2022

"Utility patents on hybrid plant varieties are more common, but you in fact can get a US utility patent on an open-pollinated or inbred variety."
Theoretically probably yes. Is there a US patent for a specific OP tomato variety? And what's the point for the breeder besides paying for that patent?
Vladimír

DK2021 · February 24, 2022

Quote:

Originally Posted by MrBig46

"Utility patents on hybrid plant varieties are more common, but you in fact can get a US utility patent on an open-pollinated or inbred variety."
Theoretically probably yes. Is there a US patent for a specific OP tomato variety? And what's the point for the breeder besides paying for that patent?
Vladimír

It is not "theoretical" at all. Anyone can search the USPTO database for granted patents with "tomato" but not "hybrid" in the title.
https://patft.uspto.gov/netacgi/nph-...ELD2=TI&d=PTXT
That's just a rough first cut for identifying such patents of course. Looking at the granted claims of a couple of these patents, they are not limited just to the inbred tomato line, but to progeny, including hybrid progeny.

MrBig46 · February 25, 2022

But I just wanted you to mention a specific OP variety that is patented in the US. I'm interested in that. Vladimír

DK2021 · February 25, 2022

Quote:

Originally Posted by MrBig46

But I just wanted you to mention a specific OP variety that is patented in the US. I'm interested in that. Vladimír

Did you look at the list of the patents that come up with that link? Of the patents that are directed to tomato varieties (and not, say, ketchup), most if not all of those are OP or inbred.

MrsJustice · February 25, 2022

Quote:

Originally Posted by DK2021

Did you look at the list of the patents that come up with that link? Of the patents that are directed to tomato varieties (and not, say, ketchup), most if not all of those are OP or inbred.

Dk2021

You are so Gifted in Law to understand the "Pure Ketchup", Amen!!

I want to join but My Brain needs a break from the pure Ketchen that is controlled by the staff that handles the claims as Judges can be misled by the Pure Ketchup, Amen!!

But I have been reading. God Bless

Tormato · February 28, 2022

Grub's Mystery Green has more off-type fruit than just about any variety that I've ever seen. Do the filers even know what they are patenting?

Dark Rumor · February 28, 2022

Quote:

Originally Posted by DK2021

Um, no. You can't patent a word. You can try to get trademark or copyright protection, but with a common word used to mean what it usually means, you won't get very far.

Can you copyright the name of a new open pollinated tomato, for example pick one of the dwarf varieties, "Tasmanian Chcocolate"? Would this prevent others from using the copyrighted name without permission to sell the newly developed open pollinated variety, "Tasmanian Chocolate"?

It would not stop others from growing and selling seeds from "Tasmanian Chocolate", but they would have to sell the seeds using a different name like "Bronze Delicious", unless they have permission to use "Tasmanian Chocolate".

DK2021 · March 1, 2022

Quote:

Originally Posted by Dark Rumor

Can you copyright the name of a new open pollinated tomato, for example pick one of the dwarf varieties, "Tasmanian Chcocolate"? Would this prevent others from using the copyrighted name without permission to sell the newly developed open pollinated variety, "Tasmanian Chocolate"?

It would not stop others from growing and selling seeds from "Tasmanian Chocolate", but they would have to sell the seeds using a different name like "Bronze Delicious", unless they have permission to use "Tasmanian Chocolate".

It would be more suitable to pursue trademark protection for the name of a new OP variety, since this name will be associated with something you would sell (seeds for example). Trademark protection would not protect the actual thing sold, however--for that you would need a patent or PVP protection. Trademarks can be registered, assuming they meet requirements of registration, and do not expire.
Copyright happens automatically upon the creation of a creative work, which might be, e.g., a paragraph that describes your new tomato, photographs of your new tomato, a webpage that includes the paragraph and photos, etc. You can register your creative work with the USPTO, although it is not required for you to have copyright. You can (and should) mark a creative work with "copyright [your name] [date]", which places others on notice that you are claiming your copyright.

rhoder551 · March 1, 2022

The only thing I know about this topic is a personal observation. I grow serrano peppers every year, my favorite. A few years back I noticed the seeds were getting difficult to find and the plants I bought from the nursery were labeled hybrid. They grew fine and were still good to eat but were different somehow...I've forgotten exactly how but I knew I couldn't save seeds from the peppers. Anyway, I searched on the internet and saw that one of the big seed companies was trying to patent serrano peppers! I don't know if they have done so but I do know that I cannot find OP or heirloom plants or seeds.

DK2021 · March 1, 2022

Quote:

Originally Posted by rhoder551

The only thing I know about this topic is a personal observation. I grow serrano peppers every year, my favorite. A few years back I noticed the seeds were getting difficult to find and the plants I bought from the nursery were labeled hybrid. They grew fine and were still good to eat but were different somehow...I've forgotten exactly how but I knew I couldn't save seeds from the peppers. Anyway, I searched on the internet and saw that one of the big seed companies was trying to patent serrano peppers! I don't know if they have done so but I do know that I cannot find OP or heirloom plants or seeds.

There is more than one "Serrano" chile. I grow Serrano Tampequino, for which seeds are available at multiple sources, as are seeds for open-pollinated "generic" Serrano chile. So I do not know why you have not been able to find OP seed. Looking at a couple of on-line shops, I see that seed is readily available as of tonight.

As for "one of the big seed companies ... trying to patent serrano peppers", that could happen only if a NEW variety had been developed, that was distinct from existing varieties. NO-ONE can get a patent on an heirloom plant that has been around for decades if not centuries, at least not in the US. But if someone put the effort into successfully developing a new variety, then good for them, and if they wanted to patent it, so be it. We all have options, and no-one is forced to buy a patented variety.

MrBig46 · March 2, 2022

Quote:

Originally Posted by DK2021

Did you look at the list of the patents that come up with that link? Of the patents that are directed to tomato varieties (and not, say, ketchup), most if not all of those are OP or inbred.

I wanted you to mention one specific OP variety that is patented in the USA. I don't have the necessary language skills to search US patents.
Vladimír

DK2021 · March 2, 2022

I do not understand why this seems so hard for you. Did you even try?????

Click on the link:
https://patft.uspto.gov/netacgi/nph-...ELD2=TI&d=PTXT

As of this morning the most recently granted patent related to a tomato variety (and not, say, ketchup) is US Patent No.11,224,194, granted to Seminis Seeds. The claims define what is protected by a patent, and in this case the claims cover an inbred tomato line "FISXJ14-6515" which is described as a "parent line" that is "uniform and stable" (open-pollinated by definition), and an example of a hybrid with this as a parent is provided.

You can buy the seed of this variety from the ATCC, though there's not much you can do with it until the patent expires in 2040.

February 22, 2022	#32
DK2021 Tomatovillian™ Join Date: Aug 2021 Location: Coastal CT, zone 7a Posts: 165	Some facts for the sake of accuracy. There is a European Patent Office (EPO) and a Eurasian Patent Office (EAPO). Member states are not necessarily the same as those countries that are members of the EU or the EAEU, respectively, as the patent conventions are separate treaties. (I have never had a patent application filed in Russia, but I have had EAPO patent applications filed since Russia is a member of the EAPO.) Utility patents on hybrid plant varieties are more common, but you in fact can get a US utility patent on an open-pollinated or inbred variety. And I think Fred is right. If you have a open-pollinated/inbred self-pollinating plant like a tomato or soybean, and you want to protect your ownership of that variety's genetics, then you either keep it to yourself or be very careful about how you sell the seed/plant, e.g., with some legally binding agreement in place. Commercially available soybean seeds are at the moment at least not hybrids, because cross-pollination is manual and pretty much only done by breeders and not commercial seed producers. So soybean sales can involve an agreement that the farmer will not save seed for planting in a future generation. You can agree or disagree with this business model but that is how it commonly works. After all, no farmer is "forced" into buying seed from any particular seed company, just as none of us is "forced" into buying tomato seed from any particular seed company. But if you really want something that is being sold with a proprietary model in place, like many F1 hybrids and the aforementioned inbred soybeans, whether your reason is because SunGold tomatoes taste great or the soybeans are high-yielding or have a specific fatty acid profile, you pay for that choice. And honestly, I don't have a problem with that, since those varieties took work to develop.

February 24, 2022	#34
MrBig46 Tomatovillian™ Join Date: Feb 2013 Location: Czech republic Posts: 2,533	"Utility patents on hybrid plant varieties are more common, but you in fact can get a US utility patent on an open-pollinated or inbred variety." Theoretically probably yes. Is there a US patent for a specific OP tomato variety? And what's the point for the breeder besides paying for that patent? Vladimír

February 25, 2022	#36
MrBig46 Tomatovillian™ Join Date: Feb 2013 Location: Czech republic Posts: 2,533	But I just wanted you to mention a specific OP variety that is patented in the US. I'm interested in that. Vladimír

February 28, 2022	#39
Tormato Tomatovillian™ Join Date: Feb 2006 Location: MA Posts: 4,966	Grub's Mystery Green has more off-type fruit than just about any variety that I've ever seen. Do the filers even know what they are patenting?

March 1, 2022	#42
rhoder551 Tomatovillian™ Join Date: Mar 2016 Location: SF Bay Area Posts: 219	The only thing I know about this topic is a personal observation. I grow serrano peppers every year, my favorite. A few years back I noticed the seeds were getting difficult to find and the plants I bought from the nursery were labeled hybrid. They grew fine and were still good to eat but were different somehow...I've forgotten exactly how but I knew I couldn't save seeds from the peppers. Anyway, I searched on the internet and saw that one of the big seed companies was trying to patent serrano peppers! I don't know if they have done so but I do know that I cannot find OP or heirloom plants or seeds.

March 2, 2022	#45
DK2021 Tomatovillian™ Join Date: Aug 2021 Location: Coastal CT, zone 7a Posts: 165	I do not understand why this seems so hard for you. Did you even try????? Click on the link: https://patft.uspto.gov/netacgi/nph-...ELD2=TI&d=PTXT As of this morning the most recently granted patent related to a tomato variety (and not, say, ketchup) is US Patent No.11,224,194, granted to Seminis Seeds. The claims define what is protected by a patent, and in this case the claims cover an inbred tomato line "FISXJ14-6515" which is described as a "parent line" that is "uniform and stable" (open-pollinated by definition), and an example of a hybrid with this as a parent is provided. You can buy the seed of this variety from the ATCC, though there's not much you can do with it until the patent expires in 2040.