My grandmother, the thief!


Paw Prints: Writings of the maddog

Jan 01, 2012 GMT
Jon maddog Hall


Just when you think the copyright and patent laws have reached their peak, more atrocities whack you in the face. After all these years I find out that according to US patent law (35 U.S.C. 161 Patents for Plants) my grandmother was a thief!


My grandmother loved plants. Every year seed catalogs would appear in our mailbox, and grand-mom would pour through them for hours. A couple of weeks later small packages would appear in the mail and a few weeks after that flowers would start to bloom around the yard.


Of course some plants you do not grow from seed. They are propagated asexually, usually by a cutting being taken from one plant and either “rooted” (by putting it in water) or by grafting onto another plant (many fruit trees and grape vines are grafted), but there are other ways such as layering, using “runners” or bulbs. Grandmother belonged to a garden club and the members of this club would exchange cuttings or other “asexual propagators” (grandma would have blushed if I had called it that) in order to get new plants in their garden.


“I have a new cutting that I received from my cousin who lives in Oklahoma,” Grandmother would tell them. A few months later that cutting had grown large enough that other cuttings could be taken from it, and trades happened. Little did Grandmother know that she was breaking major federal laws.


Or was she?


Back in those days many growers did not patent their plants. It is possible that grandmother was simply passing on unpatented plants that were in the public domain. After all, none of the cuttings that she traded had the word “patented” or even “patent pending” displayed in the fiber of the plant. It almost as hard to ascertain with plants if they are patented or not as it is to ascertain with software.


The other issue is that, plants being plants, they tend to “propagate” even without our help, and you never know when those runners, bulbs or “cutting” might escape the confines where we put them and get carried off by a mischievous animal or child. Now, without the benefit of gene analysis, it may be impossible to tell if one particular plant is the same as another plant. And that type of gene analysis is normally not available to the backyard gardener.


The patent laws protecting the “development” of a plant were written as early as 1954, and I know that grandma and her henchmen were busy with their illicit asexual trades back in those days. At least with software we did not start patenting it until the mid-1980s, so in both cases there was lots of time for public-domain “cuttings” to occur naturally.


Perhaps the original sin was not the fact that Adam and Eve ate the apple, but with the Knowledge of Good and Evil, tried to grow a better one from a patented plant.


I am writing this because the average person really does not feel threatened by our patent system and the patents on software. But perhaps if we hit them where it hurts, and show them how "patents run wild" affect everyone, the "grandmothers of today" will understand and help us fight the issue.


Carpe Planta!

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