Patented plant?

bkay2000(8a TX)March 6, 2012

I want a Victory, which I understand is a patented plant. It cannot be sold by division? Does that mean it can only be propogated by tissue culture?. So, basically, I can't buy a field grown division of Victory? So, no matter from whom I buy this product is it going to be a tissue culture, potted plant of various ages and growing seasons?


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I believe it is a sport that came out of the tissue culture of H. Elaitor. You can buy one that is field grown as long as it is not a division removed from a larger plant. Rob

    Bookmark   March 7, 2012 at 12:34AM
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ken_adrian Adrian MI cold Z5

in other words.. what rob said..

but a seller may have bought the TC.. and grown it in the ground to size it up ... for resale ... [that is what hallsons[ground]/naylor[pots]/etc does]

but all that is between the wholesaler and the TC guy ...

you buy it where you see it for sale ... there is no legal case against a buyer ...

that said.. the patent is usually paid ... thru the label.. so even if someone field grew it..and divided it up ... he could buy the tag from the patent holder.. pay the patent fee.. and sell the plant within the patent law ...

but again .. that has nothing to do with you ....


    Bookmark   March 7, 2012 at 8:27AM
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bkay2000(8a TX)

I guess I was thinking that being patented would reduce my chances of getting a larger plant. But on second thought, I guess it makes no difference.


    Bookmark   March 7, 2012 at 10:28AM
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donrawson(Z 5)

The patent simply says asexual propagation is prohibited without permission of the patent holder. It doesn't place any restrictions on how the plant is propagated with permission (whether by TC, field division, etc.). In other words, just because a plant is patented doesn't necessarily mean that it is going to be produced by could be by field divisions.

    Bookmark   March 7, 2012 at 3:57PM
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As was mentioned, so long as a plant was purchased legally it doesn't matter how it is grown.

I've only seen a few cases where you would pay the patent rights via the plant tag. It isn't very common, I don't think, and I've personally never seen a case of it with hostas.

Finally, while the original run of Victory stated that they were going to patent it, Q & Z never did patent Victory nor was the patent ever actually applied for so anyone can divide this particular plant.

Hope that helps,


    Bookmark   March 7, 2012 at 7:41PM
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Pieter zone 7/8 B.C.

Chris, 'Victory'is listed on Don Rawson's list of patented Hostas as PPAF. Guess we'll have to get him to dig a little deeper...


    Bookmark   March 7, 2012 at 8:46PM
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Chris, I assume you are not an attorney but you seem to have knowlege about this. Do you think it would be illegal to say you applied for a patent when you did not. Why would someone do this ? Rob

    Bookmark   March 7, 2012 at 10:49PM
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Originally Q & Z had every intention to patent Victory, and the first run of tags indicated that, but they simply didn't follow through with it. I would guess that the cost was prohibitive and when I asked Mary Beth about it a few years back she said that they had planned on it but didn't, and they didn't have any intention to patent anything at this point. Later plant tags no longer had the PPAF on them, and their catalog never mentioned it again, so I don't think there was anything illegal or malfeasant about it, they just changed their minds. Shady Oaks has produced it now, as well, so there aren't any restrictions on this one.

By the way, it was really nice meeting you last summer Rob. Hopefully you'll have a chance to get away and visit again some time.


    Bookmark   March 7, 2012 at 11:30PM
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ken_adrian Adrian MI cold Z5

i seem to think.. that patent is 3 to 5 thousand dollars ..

thats a lot of hosta .. to sell .. in dwindling garden market ...



    Bookmark   March 8, 2012 at 8:13AM
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bkay2000(8a TX)

That's obvious. Maybe no one will ever check.

I had a friend back in the 70's who was a high paid consultant to Steak and Ale and similar companies. She had a high school diploma. (Her specialty was HR depts.) However, she said she had a masters degree from some small college in Oklahoma. No one ever checked. She knew how HR depts. worked and used that knowledge to her benefit.

Then again, maybe they meant to apply for the patent and the cash flow got short.

Who knows?

bkay (the cynic)

    Bookmark   March 8, 2012 at 9:04AM
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Wow. I am so relieved to hear that Victory is not a patented plant. I thought the Hosta Police would be after me because of what I did accidentally.

You know I had a trough of hosta which spent the winter communally, and I'd never seen the plants up and growing. My babysitter (house & garden) did the honors with the arrivals which came after I departed the south for MA last fall.

Yesterday, I was busy potting things and did not remember exactly what I'd ordered. The first thing out of the trough was the funny looking double-eyed Victory...which I thought was TWO PLANTS because of the huge root system which separated so easily. Just one root in common unless I am mistaken. So I put it into two pots. I should have taken everything out of the trough first, because next I found laid over on its side, a second such double-eyed double rootmass which had been hidden by some soil over its top. And that was the SECOND VICTORY, both of which I'd ordered from Hostahosta/Solberg. Sigh. Yeah, I had to get out my order and take a look. I do not recall now WHY I got two VICTORY plants, had something to do with their sale and the number of plants possible to ship for the same amount of money. But I knew I'd ordered two of the CURLEY FRIES, a small crinkled heavy-substance plant, one WHITE ELEPHANT, one STAINED GLASS, one BEET SALAD (but there were huge root masses on that one also, and it separated all by itself when I exposed the roots).

I'm relieved to hear that because I potted up VICTORY as three plants instead of TWO, I won't have the Hosta Police raiding my compound this spring. And I'm glad this particular information was mentioned in the thread, because I felt so GUILTY. A conscience is a terrible thing to endure. I hope all three pots grow beautifully.

Just out of curiosity sake, what would happen if that HAD been a patented plant, and I'd separated it? Should I then pay the patent owner for the extra division? Would that make it all right and square? To whom would I owe the money?
The patent owner or the seller?

    Bookmark   March 8, 2012 at 9:35AM
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Chris, Thanks for the information. After reading my last message I was not trying to say Q and Z was doing anything wrong. I was just curious and had some thoughts about the patent process. I will be coming down to visit this summer. Rob

    Bookmark   March 8, 2012 at 9:44AM
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