Does anyone know where I can buy Simcoe hops rhizomes or plants? Scouring the internet and I'm not finding them.....then again I'm not known for being technologically advanced. It was all I could do to figure out how to join and post this.
Simcoe Hops
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HydroGeologist
Well-Known Member
You can attempt to do what few succeed at: I have read on here of accounts where people nurse a bine tip found mixed in with a Simcoe fresh hop order. I myself have never been so lucky.
If you try, do yourself a favor and don't talk about it. I know the penalty for growing that genetic material for sale is pretty stiff. I'm not sure what the law says about growing it for your own personal use but its not something I would do.
So long as the patented variety wasn't being used for commercial uses, pretty sure that there would be no issue for a lucky "Joe" with Simcoe in his backyard.
The patten owner wouldn't have suffered any monetary damages, so there shouldn't be anything to sue "Joe" for.
The pattern owner might likely have enforceable contracts with authorized growers and collect money from them if they were at fault for enabling "Joe" to get his hands on growable Simcoe.
Carlscan26
Well-Known Member
H22W said:
Joe no longer buying Simcoe hops due to personal, unlicensed supply = monetary damage
^ Yup.
And courts often do not limit damage awards to actual monetary damage...[edit: ref RIAA lawsuits]
Cheers!
day_trippr said:
RIAA situation was an application of copyright law not patent law. The people they went after often had hundreds of songs and had also shared with others, which made it worthwhile to pay the attorneys to pursue damages.
Plant patents do little more than enable the patent holder the right to sue for the royalties. Only the reproduction of the plants is covered by a plant patent. The product of the plant (hops, beer) is not part of a plant patent. Growers licensed by the patent holder will often have a contract further restricting them. Maybe even having the area fenced and secure, maybe prohibiting them from reselling a licensed plant, etc, but those terms only apply to growers with such a contract.
Patented plants reproduce naturally all the time it is a natural thing they do on their own. You buy a patented bush and over time it naturally sends out a runner and spawns a new bush, you buy GMO corn and a couple seeds end up in the compost and grow a new corn stalk, a farmer plants a field of patented soy and birds carry a seed away and starts growing elsewhere. Patented plants reproducing naturally does not violate a patent, but might violate a growers contract. Plant patent holders cannot force you to prove each patented bush in your yard is licensed. Different situation for a commercial nursery as they are expected to have a traceable supply chain. Because it is so common for plants to naturally reproduce, the burden of proof for plant patents is high and virtually unattainable without being caught in the act (for an average Joe with a couple plants in his yard).
For further discussion, let's say average Joe admits to reproducing two Simcoe in violation of the patent (proof met). So what is the damages? Well hop farmers have to make a living while paying royalties... So I am guessing the royalty would be maybe $2 to $10 per plant. That is where is becomes impractical and unenforceable at $20 of total damages. Barely enough to pay for a couple certified letters, not enough to pay to travel to average Joe's home and see what he is growing, not enough to pay attorneys $300 or $500 dollars an hour.
Even if the court allows a damages multiplier, it still would never be enough for it to be good business sense.
In summary: lacking a commercial aspect, plant patents are impractical to enforce.
Carlscan26
Well-Known Member
I guess I'm a spirit if the law vs letter of the law guy. Just because they won't come after you doesn't make it right for you to cheat the source.
Molybedenum
Well-Known Member
Patents are actually meant to allow for private construction of an identical product. This is why patents require the full disclosure of design. They grant a monopoly within the market for that product, however. Patents are meant for suppression of competition. You'd be busted if you sold your homegrown Simcoe / rhizomes, for instance.
Whether living things should be patent-able is something else entirely.
Carlscan26
Well-Known Member
Molybedenum said:
That's quite the distortion.
Patents are the publication of a new device or process in exchange for a guaranteed period of exclusivity. There are three types of patents: utility, process and plants.
Go argue about the sentient-ness of plants somewhere else. Maybe you need to stop making beer since you're killing hop and barley plants. Never mind the yeast...
While you're at it, go read a patent on a plant. It doesn't describe taking an accidentally found rhizome head in a package you receive of hops and growing your own plant. Read the patent and spend the time and money and energy to follow it to make your own Simcoe plants. And yeah don't sell them. But oh wait, use of that product during the exclusivity period still violates the protections afforded by the patent. But hey who are you hurting? Just an evil grower who brought you such an awesome hop that you're now compelled to grow it by any means necessary?
Reference: http://en.m.wikipedia.org/wiki/Plant_breeders'_rights
Molybedenum
Well-Known Member
L2R.
With these rights, the breeder can choose to become the exclusive marketer of the variety, or to license the variety to others.
This is purely for marketing purposes. For personal use, a patent is non-applicable. The issues that you see coming up with farmers and Roundup plants are due to them accidentally getting patented material via natural reproduction of their plants... but farmers also bring their product to market, and do not have those exclusive rights.
Even further down in this article is the explanation of the exemption for farm saved seed. Due to the fact that farmers do not bring the seed to market, they are exempted from the infringement claim.
My point stands: If for home use, it's non-infringing. That has always been the case with patents, and a major reason why they differ from copyrights.
Carlscan26
Well-Known Member
Molybedenum said:
You've said multiple times that for personal use patents are not applicable. Let's see a reference please.
Carlscan26
Well-Known Member
I half hate to dig up this thread but I don't want to leave it out there unfinished and with a good bit of misguided and flat out wrong information.
I had a chance to talk to a friend of mine who is a patent attorney today. Here's what he sent me after we talked:
"So you're asking: 'can you use some patented invention as long as you're doing it at home in your garage for your own private use? Not selling anything or making money on it in any way?' Technically, if the claims of the patent are infringed, it would be patent infringement. There's no "private use" exception to patent infringement."
I had a chance to talk to a friend of mine who is a patent attorney today. Here's what he sent me after we talked:
"So you're asking: 'can you use some patented invention as long as you're doing it at home in your garage for your own private use? Not selling anything or making money on it in any way?' Technically, if the claims of the patent are infringed, it would be patent infringement. There's no "private use" exception to patent infringement."
Carlscan26 said:
You might want to ask that anonymous attorney friend for the most obvious follow-up question: "How about an example where somebody was successfully prosecuted for patent infringement where the defendant had no commercial activity?"
Never happened right? Kind gets down to "letter of the law" v.s. practically of the law.
Carlscan26
Well-Known Member
H22W said:
Theres nothing I can show to prove my friend is real and is a patent attorney. Lets see a reference to where its legal for personal use. I've searched and hence why I asked my supposedly anonymous friend.
H22W said:
Yes I said that earlier too. But just because you don't get caught doesn't make it right or any less illegal. So the comment that it never happened is incorrect.
Update: he agrees its unlikely to be prosecuted if its even found out. Though posting on one of the busiest Internet forums about home brewing that you're growing a patented not for general sale hop plant may make discovery easy...regardless it's still illegal. I'm just trying to point out that the posts that its legal for home use to use a patent are incorrect. And this whole situation is pretty hypothetical anyway, but again, it's still illegal. Do what you want but at least be properly informed.
Carlscan26
Well-Known Member
Grantman1 said:
RDWHAHB...I just did.
In all seriousness, not trying to be a jerk or confrontational here but one of the problems of the web is misinformation. I'm trying to get the right info out on what may very easily be considered a silly issue. And yes, I realize I can also be construed as the misinformer, but I'll sip my next beer of my all Simcoe hops home brew with a clear conscience.
According to:
1 Pat. L. Fundamentals § 2:14 (2d ed.) by John Gladstone Mills III, Donald C. Reiley III, Robert Clare Highley.
§ 2:14. Personal use is as much an infringement as commercial use
"It is commonly but erroneously believed that only commercial exploitation constitutes infringement and that making and using a patented invention for one's own personal use does not constitute a legally actionable wrong."
This is based on standard rules of statutory interpretation of:
35 U.S.C.A. § 271 Infringement of patent
(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. ...
The leading case explaining how copyright is not like patents is:
Lawrence v. Dana, 15 Fed. Cas. 26, 60 (No. 8136) (C.C.D. Mass. 1869).
But, courts now use copyright standards for patents to reduce damages to below the level to enforce.
Shelcore, Inc. v. Durham Industries, Inc., 745 F.2d 621, 630, 223 U.S.P.Q. (BNA) 584, 591, 16 Fed. R. Evid. Serv. 1270 (Fed. Cir. 1984).
My IANAL interpretation is:
1) It's illegal to grow simcoe without a license.
2) But if you don't sell the simcoe, your maximum loss is their loss of profits (ignoring cost to defend) which would equal less than the cost to buy the same amount of simcoe, $2.69ish/ounce.
1 Pat. L. Fundamentals § 2:14 (2d ed.) by John Gladstone Mills III, Donald C. Reiley III, Robert Clare Highley.
§ 2:14. Personal use is as much an infringement as commercial use
"It is commonly but erroneously believed that only commercial exploitation constitutes infringement and that making and using a patented invention for one's own personal use does not constitute a legally actionable wrong."
This is based on standard rules of statutory interpretation of:
35 U.S.C.A. § 271 Infringement of patent
(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. ...
The leading case explaining how copyright is not like patents is:
Lawrence v. Dana, 15 Fed. Cas. 26, 60 (No. 8136) (C.C.D. Mass. 1869).
But, courts now use copyright standards for patents to reduce damages to below the level to enforce.
Shelcore, Inc. v. Durham Industries, Inc., 745 F.2d 621, 630, 223 U.S.P.Q. (BNA) 584, 591, 16 Fed. R. Evid. Serv. 1270 (Fed. Cir. 1984).
My IANAL interpretation is:
1) It's illegal to grow simcoe without a license.
2) But if you don't sell the simcoe, your maximum loss is their loss of profits (ignoring cost to defend) which would equal less than the cost to buy the same amount of simcoe, $2.69ish/ounce.
Carlscan26
Well-Known Member
As Marshall Eriksen would say: Lawyered.
Molybedenum
Well-Known Member
It looks like the upto office actually has a "plant patent," which I was confusing with the wikipedia'd notion of plant breeder's rights. There is also a distinction between a plant patent and a regular invention patent, primarily because you don't really "invent" a plant. You just guide the process of reproduction, and sometimes get lucky with mutations.
Plant patents provide the owner with the right to exclude not only commercial sale, but also reproduction of the plant.
Plant patents provide the owner with the right to exclude not only commercial sale, but also reproduction of the plant.
