Single Use Lemon
It started innocently enough. Seven years ago he had bought a lemon at the grocery store. In the lemon were several seeds. When he cut open the lemon he noticed that one of the seeds had already started to sprout. Curious to see if it could actually grow, he planted the small already-sprouting seed in the leftover container of a plant that was long-dead. He watered it. Sure enough, a green sprout soon poked out of the dirt. He put it on the porch of his apartment where it would catch the morning sun.
Two. years later he moved to a more southern city and bought a house with a yard. By that time the lemon plant had become about 10 inches tall. Once he moved into the house he planted the lemon plant, still not yet a tree, in the corner of the back yard and left it there. The demands of his job left little time to tend to it, but the rain and sunlight were plentiful enough. In five years the plant had grown into a tree, taller than he was. For seven years it had borne no fruit, and at the present time he was contemplating a re-do of the entire back yard, so he walked outside to see about cutting it down. But as he looked at it he noticed something — a growing green lemon that looked almost ready to turn yellow. He left the tree in place. Two weeks later he walked back outside and found the lemon. It was bright yellow and smooth, a sign that the juices inside were at their peak. He picked it and carried it back inside the house.
It was then, at that moment, that the trouble started. Not content to be self-satisfied, or to keep his excitement to himself, he pulled out his phone and took a picture of the big, smooth, yellow lemon. He instagrammed it, sharing it simultaneously with twitter and facebook. “Just grew this bad boy from a seed from a lemon I got at GroceMart 7 yrs ago in Tallahassee.” He put the lemon on the kitchen counter determined to find a use for it later.
Four days later a letter arrived, certified mail, return receipt required, from the law offices of DRE Prather, LLLP, New York, NY. He opened it. Inside was a letter printed on very expensive letterhead. It read:
“Dear sir / madam:
By way of introduction I, along with my firm, represent Mountsantus, Inc. My client has recently become aware that you are infringing upon its intellectual property, specifically regarding Patent No.: 873476289743934.
To wit, you have infringed upon said patent through the theft and appropriation of my client’s genetically modified food products, including but not limited to: any seeds, husks, rinds, or other material containing potentially reproducible proprietary material.
Because of your illegal actions my client demands that you cease all reproductive actions at once. Continuing to infringe upon my client’s patented genetic property will only serve to increase the damage award following litigation. Further, continuing to infringe in any manner following the receipt of this letter shall expose you to an award of punitive damages which, by law, shall include but is not limited to an amount treble the total amount of compensatory and statutory damages.
Enclosed with this letter is the evidence and admissions by you which clearly show your illegal actions. If you are not the intended recipient of this letter I ask that you contact my office immediately. Otherwise I anticipate that you contact my office immediately to discuss the full and final settlement of this matter without the need for filing a lawsuit, the outcome of which will most certainly be in my client’s favor.
Attached to the back of the letter was a printed out copy of his instagram profile showing the photo of the lemon, a copy of a receipt from GroceMart dated a little over 7 years ago showing that he had purchased 3 lemons with his Mastercard, and a satellite photograph of his back yard with the lemon tree circled in red.
He decided he should go and talk to a lawyer himself. One of his friends from high school, Brandon, had his own law firm in town, and he knew his friend would at least be able to tell him if he was screwed for free. He called his friend’s office and set up an appointment for the next day.
When he arrived at his friend’s office he sat down in the arm chair across from Brandon’s desk. He accepted Brandon’s offer of a coffee. Brandon took the letter and attachments, held them up in front of his face and read them all very slowly and deliberately, almost as if he was making a show of being thorough. Brandon cleared his throat.
“Do you still have it?”
“Have the lemon. Do you still have it?”
“Yeah — it’s on my kitchen counter. Should I have brought it here with me?”
“Oh God no. The fewer places its been the better. Mountsantus’s cleaning crews would have to clean your car, your clothes, and my office if you had brought it here. Doesn’t matter if it’s theirs or some other company’s or even your lemon, at the end of the day. They get the right to clean and sterilize any unauthorized genetic material just based on the presumption that you have committed an appropriation.”
“What? I grew a goddamn lemon. We’ll just send it back to them.”
“Yes. You grew a lemon. From a Mountsantus seed, which came from a Mountsantus lemon, which was genetically engineered by Mountsantus using genes patented by Mountsantus after Mountsantus spent millions of dollars perfecting a genetic sequence that would produce lemon trees that would grow standard size lemons with a minimal amount of human interventions and are pest-resistant. So yeah — you grew a lemon but it’s not your lemon. It’s their lemon because you grew it using their genes.”
“I bought it at the godddamn grocery store, with my money … I … this is ridiculous. It’s my lemon, to eat, drink, throw away, I could’ve set the damn thing on fire in my yard.”
“All true. But … look. I’m not trying to be the asshole here. I’m giving it to you straight. What you bought when you bought that lemon was what’s called a single-use license of that lemon. That’s the way the law on this stuff works. And you’re right. You could have eaten the lemon, juiced it, or burned it in your yard. You could’ve done anything as long as it was a single use. What you did when you planted that seed and grew another lemon is violated that license by taking a single use license and using it again to grow another lemon, without another license. You then bragged about t online which is how they found you. They monitor this stuff really closely.”
“This makes no sense. Let’s say I went onto a farm and stole a lemon, or stole one from the grocery store. If I didn’t get caught by the store manager no one would give a shit about a lemon being stolen.”
“You’re right about that, but this is different, at least as far as the law is concerned. Look — if you steal a lemon and eat it, Mountsantus or GroceMart is out, what, ten cents? Hardly worth the paper this letter you got is printed on. But your situation is different. The tree that you grew from that lemon has the same genes that Mountsantus spent so much money on. Before that tree grew a lemon it had to grow a flower. And inside that flower was pollen, which contained that gene. The fact that a lemon grew on your tree means that a bee visited that flowed and powdered its ass with that pollen. And then that bee flew somewhere else with that pollen on its ass, pollen that has genes patented by Moutsantus. You can see where this is going.”
“So what do I do?”
“Look — you have two options. One is we call up this lawyer on the letter and see what they want to settle for. It’s going to cost you probably a couple of thousand dollars. Plus you’re going to have to agree to pay for the cost of cleanup and sterilization, which they have a right to do just based on the presumption of infringement, but you would have to pay for anyway if you lose at trial. Based on what you’re telling me the cleanup and sterilization wouldn’t be huge, since this all happened recently. Mountsantus’ got contractors that are pretty good at it. They’ll have to take down the tree and burn and bleach it, do the same to the lemon, and then track down any bee hives within ten miles and destroy them. If any of your neighbors have citrus trees within that range they’ll have to be destroyed as well due to the chance of cross-pollination, so you’ll have to plan on pay for that too.”
“What’s the second option?”
“You fight it. You pay me or someone like me a retainer that’s pretty much the same as paying the cost of settling with Mountsantus and paying for cleanup. We wait for them to serve you with a complaint, then we litigate the case. But in the meantime we have to do most of the cleanup and sterilization stuff ourselves, except for burning and bleaching the lemon and the tree. We have to dig up the tree and hermetically seal it along with the lemon for a couple of reasons. First, because the way the law is written if the genetic material — the tree and the lemon — is destroyed after you receive the cease-and-desist letter then Moutsantus is entitled to a presumption that the tree and the lemon was their property. That means the judge at trial tells the jury to go ahead and presume that the tree and the lemon contained their genetic material, which means you lose. Second, because if you don’t hermetically seal it to keep the genes from spreading their damages keep going up and up and up. Third because as a lawyer I an ethically obligated to preserve and not destroy evidence. I’m not going to bullshit you. The way these cases play out it’s lose-lose for someone in your position.”
“So I need to settle.”
“You need to settle out, soon, because the longer you wait the more chance there is those genes travel to a wider radius, and the more money you would have to pay out when you do decide to settle out. Let’s see what this Shumaker guy wants to settle it. Usually I can talk them down ten or twenty percent.”
The day after he signed the promissory note to Mountsantus, monthly payments of $759.00 for the next two years which included a statutory rate of interest, damages, and cost of cleanup, the cleaning crew arrived at his house. They parked a nondescript white van on the street in front of his yard, and three men in white tyvex suits piled out, carrying a roll of plastic, shovels, a wheelbarrow, spray bottles, a large yard chemical sprayer, a toolbox, a box of rubber gloves, respirators, and what looked like a beefed-up household vacuum cleaner. Two of them headed to the back yard with the wheelbarrow, shovels, plastic, big chemical sprayer, and the vacuum. The third headed inside with the toolbox and spray bottles.
“Sir please indicate for me where on the counter the genetic material is.”
He pointed to the lemon. The man donned a pair of gloves, opened the tool box and pulled out a thick plastic ziplock bag, picked up the lemon and dropped it inside. He placed a red dot sticker where the lemon had been resting on the counter.
“Did any household objects come into contact with the material? Knives, plates, bowls, scissors, cloths, anything like that?”
“No — I don’t think so.”
“How did you remove it from the tree? Did you pick it by hand or did you cut the stem?”
“I picked it by hand, I guess.”
“Did the material come into contact with any other surfaces inside your house?”
The man then pulled what looked like to pencils wound together with string out of the toolbox and unrolled them. They were actually a short stick with a suction cup on one end. A string about two feet long was tied to the stick and connected it to a white grease pencil. The man stuck the suction cup on the red dot, stretched out the string, and using the grease pencil drew a circle on the counter around the dot. He then placed the apparatus inside its own heavy zip-lock bag and put it back inside the toolbox. He then took out a thick white cleaning pad form the tool box and, spraying the area with whatever was in the spray bottle, scrubbed the area vigorously.
Outside the two men were wrapping the tree in the plastic they had brought. They stuck the hose under the plastic and sucked the air out. They then dug out about six feet from the base of the trunk and carefully dug out to lift the tree trunk with all the surrounding dirt still mostly in place. They wrapped the dirt-root-ball in the same plastic, vacuumed it down, and loaded it into the wheelbarrow. One of them wheeled the shrinkwrapped tree back to the van while the other sprayed around the hole with the big yard chemical sprayer. The three men then loaded everything back into the van and drove away.