Originally Posted by day_trippr
And courts often do not limit damage awards to actual monetary damage...[edit: ref RIAA lawsuits]
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.