copyright for divided perenials

trina5March 23, 2008

I would like to divide and sell some of my established plants. How would you recomend I tag them. I do know genuis and species but I don't want to infringe on patents ect.

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I believe if the plant is patented you cannot propagate the plants in any form, unless you have an account set up to pay royalties and are an approved grower (I assume they want to assure quality control). The Proven Winners ones also require that one of their tags be present at sale. So if you propagate and sell something that is Proven Winners or another patented plant, you shouldn't label it with any brand name unless you've a) got the right tag, b) paid the royalty. As to whether you KNOW it's a patented plant and decide to sell it anyway, sans-royalty, that's your call, but I wouldn't label them with the brand name.

    Bookmark   March 24, 2008 at 6:43AM
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rhizo_1 (North AL) zone 7

trina5, are you certain that the plants you are interested in propagating are under a patent? If they are not, you can propagate and sell to your heart's content. If they are, you must not even consider it, as rachel says, without applying for the right to do so.

    Bookmark   April 8, 2008 at 1:50PM
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So how do you know what's copyrighted or not? For us growers of a smaller scale, say selling at a weekend sale, how do we know if we've stumbled into a protected area? (All due apologizes here, I know I'm in the "big kids" area, but I've always wondered how this aspect of your business works.) Thanks in advance.

    Bookmark   March 5, 2009 at 12:16PM
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francescod(6b/7a VA)

If you are sure the plant has no cultivar name then it isn't patented. You can check the US Patent office for named cultivars that are patented. Just because it is named doesn't mean it is patented. Technically, a plant as found in nature cannot be patented. It has to be different than the species in other words. Once a plant is patented it cannot be propagated. Nor can a sport from a patented plant be propagated without the breeder's permission. Most plants are not patented, those that are must be purchased from a licensed grower. When cuttings or plugs are purchased the grower adds a royalty fee. Purchasing a license is very expensive. Sometimes you can get an exemption from a breeder or license holder though.

    Bookmark   March 15, 2009 at 11:54PM
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The topic of propagating patent protected plants comes up every season here in this forum so if you dig through the archives you should be able to learn all there is to know.

In a nutshell, if you grow an 'Endless Summer' hydrangea and take cuttings from it you have broken the law since the plant is protected from propagation for any reason unless you get permission from the patent holder. But they aren't going to find out you did it until you offer your baby plants for sale. They do watch out for people illegally growing their product and they take action when they find out you are selling their plants. One way around it is to grow whatever you want and sell it as the original genus and species and NOT sell it as the patent protected name, in other words you can't sell them as 'Endless Summer' hydrangeas but you can sell 'John's favorite hydrangea'. Their marketing efforts do pay off, people always ask for the promoted version of the plant. You will have trouble selling all of your no-name versions of the plant but it all depends on your market.

Some of the plants that have patents do deserve the protection, but only some of them. There are plenty of plants out there with PPAF and other protection attached to them that are no different than the original species - the patent holders just got greedy and make false claims that they've invested years of hard work to develop something special when they haven't.

I have a lot of plants in my garden that were given to me by friends. I re-tag all my plants with genus and species names and toss any named cultivar tags. I propagate those that perform well in my area. If I ever sell them I never claim they are the patented plants, I make up my own names.

    Bookmark   March 19, 2009 at 10:17AM
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There is a lot of confusion when talking about 'PATENTED" PLANTS. All plants have a genus and species, some have a cultivar name as well, this is where the confusion begins. A cultivar can be patented, the rights to propagate it must be obtained from the patent holder. In addition aplant can be trademarked as well. Sometimes the trademark holder is the same as the patent holder, but not always or even usually. For instance, Little Henry itea sold under the Proven Winners label is a trademark, the actual plant is I believe a patented cultivar known as Spritch. The same patented plant could and I believe it is sold under other trademark names, you could sell the same patented plant under any number of trademarks as long as the patent holder will give permission to propagate it. I'm certainly not a lawyer,but this is the way I understand it,I'm sure there are folks who could explain it better than me.

    Bookmark   June 7, 2009 at 11:41PM
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Purchasing a license to propagate? I was licensed to propagate under one plant breeder and there was no cost involved in obtaining the license. I just had to get their permission, keep records of cuttings taken, and pay my royalty fees to a company who did their royalty administration. I had inspectors drop in without notice and they counted what I had on bench and compared it to what I had purchased and my records. While there, they went ahead and checked all my stock for all the breeders who dealt with that administrator. IOW, my g'houses and books were open to them without question. That's an expensive process so I doubt many breeders would grant permission for a person who wants to do a few cuttings.

No, I do not propagate any patented stock and sell it under its botanical name to avoid paying royalties. I let my license drop but am still under license every time I purchase patented plants to grow them on only even if it's not written out in a contract. It's understood and is spelt out in the broker catalogue.

I doubt its so much for quality control, it's for royalty control. That's how the breeders or distributors make their profits. And, I wouldn't say that most plants are not patented these days. There is a tremendous market push for named varieties and as soon as patents expire those particular plants often become unavailable to growers. There have been quite a few cultivars I cannot get anymore to grow on and they magically just disappeared from the sources when their patents expired. LOL.

    Bookmark   June 9, 2009 at 12:22AM
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