Plant Patent Fraud

[Chris49]

What is the name of your state?
Michigan

I work for a grower direct retail outlet. Recently we have discovered that a variety of plant (Perilla) that we had been purcashing from one of our suppliers was not patented. This came as a shock to us because all the invoices in regards to this product had the product clearly marked as patented, and therefore we could not propagate it but were forced to repurchase unfinished plants from them year after year.

This caused me to call into question whether or not other varieties of unfinished (unrooted) products we purchase were truly patented. I've been attempting to double check when the catalogues refer to a product as being patented, however am having trouble.

Many of the products are not yet actually patented, but are labeled as PPAF (Plant Patent Applied For). Its my understanding that this means that while they are not yet technically patented, asexual reproduction of the product is still illegal.

The products in the catalogue that have already been patented all come clearly labeled with their patent number, and can easily be verified. However the PPAF products are only labeled PPAF and are incredibly hard to find out whether they truly are PPAF. Much of this is due to the fact that these companies each seem to be calling the same product by slightly different names. They change the series name, but the descriptions are almost identical. This would lead me to believe that they can take a patented (or a PPAF) plant and call it anything they want, to me that doesn't make any sense, as I would think it would require the "proper title."

My questions are:

Are products that are PPAF truly illegal to propagate ?

Do products that are PPAF have a number assigned to them by the patent office that would make them more easy to look up?

Are the companies we purchase these products from required to furnish this number to us?

What are the titling requirements for these companies? Can they call a patented variety by any name they choose?

What are the repercussions that these companies can face when it is discovered that they have been mislabeling varieties as patented?


If anyone has any background on this or any answers to these questions I'd certainly appreciate hearing from you.

Thank you,

Chris49

 

[divgradcurl]

I've never heard of "PPAF." Sounds like BS that they are using to maintain an artificial monopoly on their products. The patent office just doesn't work that way. Patent Pending is the same thing a "PPAF" -- both mean "I don't have a patent. I may get one someday, but I don't have anything right now."

In other words, "PPAF," like "patent pending," is meaningless from a legal standpoint. Unless and until a patent actually issues, they have nothing that they can enforce against someone else.

Are products that are PPAF truly illegal to propagate ?

Under patent laws, no. The distributor or grower may try and get you to abide by some contractual restrictions or something, but they have no patent rights they can enforce.

Do products that are PPAF have a number assigned to them by the patent office that would make them more easy to look up?

They would have an application number, just like any other type of patent. I don't know if plant patent applications are published after 18 months or not -- you could go to www.uspto.gov and poke around to see if you could find out. Try here specifically to start: http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_161.htm#usc35s161

Are the companies we purchase these products from required to furnish this number to us?

No.

What are the titling requirements for these companies? Can they call a patented variety by any name they choose?

A patent is on a specific subspecies or variety of plant; the name really isn't relevant, at least as far as patent law is concerned. The USDA or whoever regulates these growers (if anyone) may have some regs, but they are not patent regs.

What are the repercussions that these companies can face when it is discovered that they have been mislabeling varieties as patented?

Probably none, unless someone wants to get a lawyer involved. However, saying something is patented when it really isn't, or saying something has a patewnt applied for when it really hasn't, is illegal -- here's the applicable statute: http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_292.htm#usc35s292

There's a fine associated with it, but unless the abuse is pretty widespread, you may have a tough time getting a federal prosecutor to go after it. A civil case for fraud and patent misuse might be a better way to go, but you'll have to cough up some cash for a lawyer if you want to take that route.

I don't know if you are still monitoring this or not -- it's been a couple of weeks -- but I just got back from vacation and saw your post, so hopefully this info will help you out.