How to buy plants that are not propagation prohibited

GardeningHeidi(5)July 9, 2014

I just found this message on a tag tonight (I did not buy the plant), and I have questions about it.

1. Will all such plants say "prop prohibited," or will there be codes or numbers one has to look up in order to know if they're prop prohibited? If a plant has a patent number on it but says nothing about propogation being prohibited, does that automatically mean that propagation is prohibited?

2. Are there typically easy sources for non prop-prohibited plants?

3. From a practical perspective, does this law require that I kill seedlings or throw away rhizomes?

4. Most of all, how can I avoid these plants in the future?

This post was edited by leggs on Thu, Jul 10, 14 at 1:21

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calistoga_al ca 15 usda 9

Propagation is only prohibited if done vegetatively such as by cuttings or scions. Your seeds or rhizomes are not covered. You can google any plant by name, that you may have in doubt, and patent information should be available. Most common plants if originally patented, the patent has expired. Al

    Bookmark   July 10, 2014 at 9:32AM
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GardeningHeidi(5)

Thanks!

    Bookmark   July 10, 2014 at 10:20AM
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rhizo_1 (North AL) zone 7

You can also assume that any plant with a patent number on the tag cannot be vegetatively propagated, whether it says so or not. The PP number is always prominently located on the tag.

    Bookmark   July 10, 2014 at 4:32PM
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GardeningHeidi(5)

So, if the plant has a patent number on it, I may NOT propagate it. May I

a. Leave its babies where they naturally occur?
b. Move its babies around on my property?
c. Share its babies with my friends?

    Bookmark   July 10, 2014 at 5:50PM
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brandon7 TN_zone(7)

"Propagation is only prohibited if done vegetatively such as by cuttings..."

That is only true if we are talking about patented plants. There are other types of protections that legally limit propagation, including sexual (seed) production. If we are limiting our discussion to only ornamentals, then patented plants may be all we have to worry about. If we are talking vegetables, etc, it may be a different story.

"May I ... Leave (a patented plant's) babies where they naturally occur?"

Yes, and as was discussed above, if you are talking about seedlings, patents do not cover sexually produced offspring anyway. So, you could even dig the seedlings up and sell them!

"May I ... Move its babies around on my property?"

If you are talking about seedlings (non-vegetatively produced offspring), sure. If you are talking about cuttings or divisions (vegetatively produced offspring), then no.

"May I ... Share its babies with my friends?"

Same answer as the last one.

    Bookmark   July 10, 2014 at 10:02PM
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calistoga_al ca 15 usda 9

When you share or sell your seedlings, you should not use the patented plants name, as your seedlings will not be the identical plant which produced the seed, in most cases. Al

    Bookmark   July 11, 2014 at 9:16AM
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GardeningHeidi(5)

Thanks so much for all the answers!

So, to me one of the great joys of gardening is the ability to move, experiment with, and share plants with those in my community. Where can I buy plants that I can do those things with without compunction? I would guess that heirloom varieties are so old that their patents are no longer in effect. Additionally, I often see plants without patent numbers at big box stores, etc. Are plants without patent numbers available for division, cutting, and cultivation? Do local nurseries (not big box stores) typically sell plants that specifically patent free? Is there an "open source" movement among plant growers as there is among software designers? I realize they'd cost more, but I think the ability to have fun with the plants would be worth it. What are your ideas about this?

This post was edited by leggs on Fri, Jul 11, 14 at 10:28

    Bookmark   July 11, 2014 at 9:58AM
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rhizo_1 (North AL) zone 7

Leggs, the vast majority of plants in your garden center will not be patent protected. Any plant without a PP label is not patented.

Plants may be provided with big, professional labels with a trademarked name, but those plants should not be confused with patented varieties.

I'm pretty sure that you are making more of this than truly exists. I think that if you browse your local garden centers, you'll find hundreds of non patented plants! And any seed propagated plant, like heirlooms (or not heirlooms) are not patented.

I often buy new patented introductions.....perennials, a tree, a shrub now and then. They shouldn't be avoided!

    Bookmark   July 11, 2014 at 12:08PM
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lazy_gardens

Don't confuse the Trademarked plants (trademarks never expire) with a patented plant.

As for having the PPP (Plant Patent Police) come after you for dividing that clump of patented daylilies, don't worry.

The PPP keep track of the big growers to make sure they aren't reproducing a patented variety for mass market selling.

    Bookmark   July 11, 2014 at 12:17PM
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GardeningHeidi(5)

Oh, I know that no one really enforces these things, but I'm a square. Follow the speed limit, don't copy people's CDs, stuff like that. I want to make sure I know what the rules are.

Thank you for the information about the trademark vs. the patents! I think I know just what to look for now! Thank you!

    Bookmark   July 11, 2014 at 12:30PM
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brandon7 TN_zone(7)

Well, it's like running a stopsign out in the middle of nowhere. Chances of getting stopped may be pretty slim, but that doesn't mean it's a good idea or that people (even the hobbyist gardener) are never caught or punished. Occasionally (although rare), plant patent holders sue hobbyists or very small growers for non-economic reason.

One very good source for checking plant patents is patentgenius.com. That site lists ALL patented plants (but not brand new plants with pending patents - which for practical purposes should be considered as patented). If you know the REAL cultivar name (not the trade name) and take the time to look thoroughly (sometimes listings are not in the category you might initially expect), you can know for sure whether a plant is patented. I have seen patented plants sold without a patent notification on the tags (usually against the explicit instruction of the patent holder).

Here is a link that might be useful: Current Patented Plants List from patentgenius.com

    Bookmark   July 11, 2014 at 9:17PM
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GardeningHeidi(5)

Thanks! I was actually wondering about patent genius because I checked it a couple of nights ago with a lavender plant I have, and it didn't have any record of the plant's patent number. Does it have only some patents?

    Bookmark   July 11, 2014 at 9:37PM
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GardeningHeidi(5)

ROTFLOL! No wonder I couldn't find the plant by its patent number! The patent number on the tag refers not to the plant but to the design on the tag!

    Bookmark   July 11, 2014 at 9:41PM
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david52 Zone 6

As for having the PPP (Plant Patent Police) come after you for dividing that clump of patented daylilies, don't worry.

The PPP keep track of the big growers to make sure they aren't reproducing a patented variety for mass market selling.

My understanding is that you can propagate for your own use, say to replace them. But not distribute or sell to others. Personally, in my garden, and the dozens of plants I propagate annually to keep the 3 acre property up to snatch, no one would never see a propagated patented plant. Those ones over there? They just look like propagated patented plants, and em, er lets go have some iced tea, okay? Oh, look, its a hawk overheadâ¦..

    Bookmark   August 4, 2014 at 11:02PM
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jacqueinthegorge(USDA 8 / Sunset 5)

No, you cannot legally propagate a patented plant for your own use. If you need six for a foundation planting, you cannot buy just one and propagate from that plant.

That's the law. As with any law you decide to flout, you need to ask yourself under what circumstances are you likely to get caught, and avoid those circumstances. The chances may be quite low, but they are not zero.

    Bookmark   August 6, 2014 at 12:05AM
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david52 Zone 6

Alright. I looked through the records and I don't have any patented plants left - they don't seem to do so well here anyway. I do have propagated "trademarked" plants, which has to do more with the name, and I can propagate. Such as the local "Plant Select" series

    Bookmark   August 6, 2014 at 2:38PM
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dbarron(z7_Arkansas)

I grow from seed, or buy from local native plant nursery which also grows from seed.

I haven't anything on the property (other than a clethra 'Ruby Spires' and a clematis 'Ernest Markham') that has a 'name'. That makes it a lot simpler...

    Bookmark   August 14, 2014 at 8:18AM
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