Comment by vikramkr | Hacker News Reader

Comment by vikramkr | Hacker News Reader

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Well, tubers can't be patented, so rest easy.

As long as we have a patent system, patenting plants (especially with the heavy restrictions on plant patent eligibility) is a reasonable extension. Since the origin of agriculture, you've had the "right" to copy your neighbor's cool new invention to till the soil better without issues. As a society, we decided that giving inventors patent rights for a limited amount of time is going to encourage innovation and investment into new technology. The founders thought it was important enough that we embed it in our constitution, and since the founding of this country, patents have been a driving force in industry. Maybe there's a better way to support innovation and make investment into r&d happen. I personally don't find the alternative arrangements people have tried so far all that compelling- but im open to the idea that this isn't the best way to do things. For now though, I think I'm getting a good deal out of a patent system where the creator of the cotton candy grape is able to spend 12 years developing a cool new variety because they'll get a return on their investment over the 20 years following their product's launch. Patents paid for a lot of the products I use day to day, and unlike copyright, patents actually expire after a reasonable amount of time.

This ignores all the controversy over the patent system allowing biological patents in the first place, and the many potential abuses and pitfalls, which seems very disengenuous to me. I don't think the founders intended the patent system for farming.

Patenting plants is one reasonable extension, and the one we've gone with.

But it wouldn't have been totally crazy if justices had decided that when you sell something that by its very nature self replicates, you cannot get too upset when it does exactly that.

Agriculture is like other goods in that it can have costly r&d we want to incentivize, so we might want to prevent copying. But it's a bit different, in that it comes preprogrammed and desperate to break all these rules.

I feel like there was a time this could have gone either way, but it was probably quite a while back.

What makes tubers special in this context?

IIRC it has something to do with tubers also being the part of the plant that is used as food[0]. Why is that considered an exception while something cinnamon, where the bark of the plant is eaten and also used in asexual propagation, is not? No clue. Really most of this boils down to "because the law says so" or "because the courts said the law says so."

[0] https://www.justia.com/intellectual-property/patents/types-o...

I'm going to guess it has something to do with the process before the product reaches you.

If you buy a potato, it, on its own, will reproduce given the right circumstances. You can grow an apple seed, too, though that apple seed isn't likely to grow the same apple. You might get something out of an onion, though it is hard to grow a garden full of them without some work gathering seeds and so on.

You an patent certain types of apples, though, and the trees (though not so much what comes from seeds): Eating apples are generally clones. Getting a nice, sweet apple is a lucky thing - Johnny appleseed was realistically spreading cider apples and/or what we would call a crabapple now. In addition, many purchased apple trees are grafted onto different roots to make them more robust.

Similar thing with cinnamon. I've never seen fresh cinnamon bark for sale in a spice isle, just like I've never seen an apple branch for sale. Nor rootstock that wasn't an edible plant. Cinnamon bark is, at best, sold dried - and depending on the variety, it isn't even the entire bark, but just the inner layer. This isn't really what folks use to cultivate cinnamon, by the way [1], and i'm guessing that a lot of cinnamon patents are more geared towards extracting oils and drying/harvest methods.

[1] https://en.wikipedia.org/wiki/Cinnamon#Cultivation

Does it require actually "inventing" something, i.e. specific genetic manipulation to achieve the desired effect, or can you just try a bunch of things and go "whatever this is exactly, that's what I have a patent on now"?

For plant patents, it actually involves recognizing something. If a branch of your Apple tree mutates nd produces good tasting fruit, then by law, you can patent a plant that exists in only one instance in the wild prior to you recognizing its value and propagating it. That means that you can take that branch of the apple tree and grow it into a new variety and patent it. Because the patent is on asexually reproduced plants, you now have a patent on that variety, but you couldn't get a patent on a tomato for example where it's propagated by seed (good luck gettinga greenhouse to but tomato cuttings from you). The new strain can arise accidentally in the wild (but if there is more than one plant of that variety, then its nonpatentable! It has to be a freak variation that would not persist without your recognition or intervention). Or, it could be something you created through a breeding program, or by irradiation growing shoots (very common way of making new citrus varieties). But the patent is on the end plant, not the method.

These plant patents have nothing yo do with genetic manipulation/bioengineered/"gmo" plants. There, the DNA sequence itself, not the plant, is covered by the patent, its a whole different ball game

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