Amendment to the TOU doc.

Members are advised that item 14 of the TOU document has been amended and now reads:

14. All Rose Talk members are invited to participate in a rose exchange program and to list roses (only) for sale in the 'Rose Classifieds' forum subject to the following conditions:

A. The exchange, gifting, or sale of privately propagated plants with a current PBR, or propagating material from them, is not permitted on Rose Talk. Members are advised to search the Plant Breeders Rights Database to determine the status of any rose before conducting any exchange, requesting any plants or propagating material, or listing any rose for sale.

B. The use of a registered trade mark, or other such copyright or license, to sell a rose is not permitted on Rose Talk. Members are advised to search the Trade Mark Database to dertmine the status of any rose before listing them for sale.

C. Members may list roses in their possession in the 'Rose Keepers Database' regardless of their PBR or trade mark status.

D. You may sell a rose that you had previously bought from a licensed propagtor or distributor but you must include the original label as evidence of the legal purchase of the plant. In such cases, once sold the PBR is exhausted, however, plants propagated from it or propagating material from it, are still protected if the PBR is current.

NOTE: The term propagation does not include the process of hybridising and as such does not extend to include pollen from any rose.

Members are advised to make themselves aware of this change and if you would like clarification of any of these points please don't hesitate to ask.

I have several seedlings this season that may have been self pollinated or pollinated by another plant PBR of the same variety growing next to the seed parent. Excuse my lack of knowledge on this subject but wouldn't the seedlings carry the DNA of the original PBR rose. Some look exactly like the seed parent.

It would be my word against the original grower or laboritory that I had actually grown it from seed.

PBR does not extend to pollen and does not cover the act of hybridising... this is why I added the final section:

NOTE: The term propagation does not include the process of hybridising and as such does not extend to include pollen from any rose.

It's not the DNA they are trying to protect, because this has been present for many millenia and passed down from species. What they do want to protect is the right to propagate a particular variety. It would also be up to the accuser to prove you wrong. This could be simply solved with a genetic fingerprint, at great expense to the accuser and would completely indemnify the accused.

The differentiation is that you can generate an entirely new plant by using vegetative material such as cuttings, buds, even callous material in tissue culture, however, pollen is haploid an so can't be used to propagate an identical entire plant.

I have not been able to obtain a clear answer on this issue regarding the use of pollen from genetically modified roses, which are set to be released onto the Australian market by Florigene. I have read their risk assessment submission in which it states they do not intend to take any action against the use of the pollen form these cut roses or the potential propagation of plant material for private home use or the germination of seeds derived from it. U.S. sources have disputed my conclusions on this stating that we may well be violating a few patents by using the pollen, however, I would doubt it based on what I've read. I would not use it anyway because it has been 'fiddled with'. It ciontains genes from other plants as well as genes from antibiotic resistant bacteria. These are not the kind of things I think we should be trying to breed into roses.

So rest easy Bruce. The PBR is purely to protect the right to propagate and (hopefully) profit from the propagation of a particular variety for a period of 30 years. Once sexual reproduction has occured it is no longer that variety regardless of how closely it resembles either parent and it would be up to them to prove otherwise.

Simon, I thought we were allowed here in Australia to grow cuttings from a Patened rose and pass onto a friend, as long as we we didn't sell it ? Also I thought it was 20 years from the patented date here in Australia ?
Have things changed ? Where did the 30 years come from ?

Yes.. you are right... I made a mistake with the 30 years... 20 years is right.

As for the other part of gifting roses with a current PBR, apparently this is also not on. An email I received from IP Australia said this:

The key concept of PBR exhaustion arises in section 23 of the Plant Breeder's Rights Act 1994 (the Act) (a link to a copy of the Act is available from the PBR website (http://www.ipaustralia.gov.au/pbr/index.shtml)). Briefly, PBR on a particular plant is exhausted when that plant is sold by the PBR grantee (the grantee) or with their permission. As a result, that plant material can be on-sold without infringing the grantee's rights. PBR "resurrects" if that plant is further propagated (eg to create new plants) and the propagation, sale etc of those new plants will require the grantees authorisation. A concession relating to Farm Saved Seed is available (see section 17 of the Act), though it does not seem relevant in the scenario you describe.

Also please note that PBR is not infringed by any actions related to private and non commercial purposes - therefore home gardening is not affected. However, private propagators are restricted from selling/trading/bartering/gifting etc of the propagating material on which PBR has not been exhausted.

So, in a nutshell what this means is this:

1. Once a plant with a current PBR is sold the PBR for that INDIVIDUAL plant expires. This INDIVIDUAL plant can be sold again legally.
2. If you propagate plants or provide propagating material from that plant the PBR becomes active again on THOSE plants or propagating material and selling or gifting the plants or plant material will require permission.
3. You can propagate these plants for your own use in your own garden with no issues.

Because the forum is liable for the unauthorised exchange of any PBR protected material I have said that in cases where plants hold a current PBR, and were bought from a licensed source, one must include the original plant label. The above author from IP Australia also agreed that this requirement would help to ensure the sale of such material was infact legal.

It's a bit hairy, all this PBR stuff, but unfortunately it is something we need to clearly understand, stipulate and enforce because I have also been told by IP Australia that as owner of Rose Talk, allowing the sale/exchange/gifting of PBR protected roses I would effectively be acting as the agent in which case I would be an unauthorised agent and liable to the same penalties as the person selling the unauthorised material. It is for this reason that we also require every forum member to be familiar with their responsibilities and not advertise the sale or exchange of such material on the forum. In such case members will be contacted and asked to edit their post(s) and in cases where this does not happen we will moderate them accordingly. It's not meant to be heavy handed... but unfortunately, ultimately, it has to be :shrugs:

Thanks Simon. I had heard in America that they weren't allowed to give them away. So I now know its that way here too. I don't know where I got the idea we were allowed to here.
Anyway there are plenty of old roses to propagate when I start doing it again, I am just trying to establish my new bought roses now.