How does an “open release” affect enforcement of plant patents?

Question

The following excerpt (with patent links added) is from Making Sense of New Apple Varieties, Trademarks and Clubs: Current Status (2009):

‘Cameo’ (‘Caudle’): An open release, this variety was a chance seedling discovered in Washington State and once promoted by Dole Fruits (USPP#9068). ... Two new more highly colored sports of ‘Cameo’ have been discovered, ‘Dudek’ was granted USPP#19,766 in 2008 and ‘Cauflight’ was granted USPP#20,942 in 2010.

My three part question:

• Does “open release” mean that the ‘Caudle’ patent is not enforced?
• If no, does an open release weaken a patent?
• If no, how is that not considered to be inducing infringement?

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I found another example that has more information available. The “SweeTango” apple variety is patented by US PP18,812 and was not an Open Release. An article was written about this in 2011:

Seabrook, J. Crunch. Building a better apple. The New Yorker, Annals of Agriculture, November 21, 2011.

But instead of an “open release,” which meant that anyone could grow the apple, the university decided to release MN 1914 as a “managed variety,” or what’s known in the business as a “club apple.”

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Rooksby, J. H. Sue U American Association of University Professors, September-October 2012.

Enter a new species of apple developed at the university. The university decided to release the apple, branded the SweeTango, as a “managed variety” rather than an “open release,” which would have allowed anyone to grow it without payment to the university. Prior to Minnesota’s commercialization of the new apple, no university had ever released a managed variety of apple in the United States. Under this structure, the university selected an exclusive licensee that requires anyone wishing to grow the apple to join a consortium it has established, hubristically named “Next Big Thing.” Smaller growers in Minnesota not included in the consortium may grow limited numbers of the new apple but cannot sell them commercially except directly at farmers’ markets, in local grocery stores, and at farm stands. Growers outside of Minnesota cannot grow the new apples at all unless they join Next Big Thing.

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This indicates that an Open Release means anyone can grow the plant. However, I still do not have any legal references to verify this.

Other References

Wang, D. How growing and marketing apples turned industrial. October 17, 2014.

Alyssa Vance, A. The Building of an Apple Brand: The SweeTango. Heavy Table, October 14, 2009.

Breining, G. Get a Load of This Apple, University of Minnesota, Winter 2010.

Answer 1

I've found something close enough to an answer. There are two types of Release of a cultivated strain: Open Release and Managed Release (Club Apple).

An Open Release allows anyone to grow the cultivar. However, the apples themselves may be Trademarked. In a Managed Release, growers of the cultivar must pay royalties, and in addition the apples may be trademarked. This is US law only, and other countries have much different IP protection for cultivars.

The rush to redness. Apples, June 2012 Issue, “Varieties” (June 1, 2012).

Honeycrisp went off patent in 2008, but under U.S. patent law, that’s not an issue. Under U.S. law, a sport—a limb or a whole-tree mutation—that occurs in an open-release variety belongs to the owner of the orchard in which it’s found.

“The United States is the only system I’m aware of that allows someone to find a sport and completely make it their own, and it’s frustrating,” Bedford said in the article in 2008.

“Honeycrisp took thirty years from breeding to release, and all it takes is someone to happen to notice a little redder limb and suddenly they’re the new owner of all that technology. Pretty much everywhere else in the world, you have to go through the owner of the variety. Technologically advanced as we are in this country, we’re behind the eight ball in intellectual property protection.”

I found additional references in:

Winston, E. I. 2014. Sowing the Seeds of Protection. The Catholic University of America, Columbus School of Law.

Like any seed, apples can be protected through plant patents and utility patents. In addition, through the release of managed and club apples, trademarks have been used to educate the consumer to request a seed variety by a brand name, rather than a variety name.

The patent law on this is defined in 35 U.S. Code, Section 161 Plant Patents and some Provisions and Limitations are described by the USPTO:

Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of title. (Amended September 3, 1954, 68 Stat. 1190).

Charles, D. Want To Grow These Apples? You'll Have To Join The Club. NPR. November 10, 2014

Less visible is the economic machinery that's helping to drive this revolution. An increasing number of these new apples are “club apples” — varieties that are not just patented, but also trademarked and controlled in such a way that only a select “club” of farmers can sell them.

One final issue that I am not clear on. Apples are not true breeding, that is to say, an apple tree grown from seed will not necessarily produce fruit similar to the tree that produced the seed. This fact seems to be ignored by the US Code, which would indicate that trees grown from the seeds of patented apple tree cultivar/trademarked apple would not be protected by patents or trademarks if the fruit produced by the tree did not match the apple. However, by the time a tree grown from seed produces fruit, the patent may already be expired anyway.

I would be interested in any case law or additional details/insight anyone has on these laws, as well as any historic cases.