Propagation of Patented Plants Questions

15 years ago

Hi, Newbie here, just joined. I've been reading a while here and elsewhere and I have read that patented plants can't be ASEXUALLY propagated. I also read that they can't be propagated PERIOD. I have also read that they CAN be propagated if you don't list the trademarked name. Now I am confused!

Here are two examples I would like to know the answer to:

1)If I want to grow BURPEE BIG BOY tomato seedlings and sell them in my front yard is that ok? They would be sexually propagated from seeds I bought from Burpee? If I sold the actual vegatable, the tomato, could I call them Burpee Big Boys?

2)I have a very old azalea that has no tags on the property of the house I own. It was there when I bought it. It looks like a Rosebud. If I take cuttings and sell them out front, will I be infringing on someones patent? I mean, in this case, how would I know?

It would seem to me from what I have read that #1 MIGHT be OK and #2 PROBABLY isn't. What do you folks think?

Thanks, John

Featured Answer

trianglejohn

15 years ago

You are ok on both plans.

You bought the seed. They sold you the seed to grow tomatoes. You can sell the fruit as Burpee Big Boy. What you can't do is keep some seeds from the fruit you grew and sell the seed as Burpee Big Boy tomato seed, nor can you keep seed from those plants and grow them and sell the fruit as Burpee Big Boy tomatoes. In order to do that you need to buy new seed directly from Burpee. They want you to buy your Big Boy seed from them everytime you want to grow Big Boy.

Now, what you can do is save seed from your tomatoes and grow those plants and harvest that fruit and sell it as Round Red Tomatoes or any other name you can think up but you can't call them Burpee Big Boy or even just Big Boy unless you bought the seed from Burpee. You can't even hint that your homegrown-from-home-collected-seed tomatoes have anything to do with Burpee's Big Boy. At least not without their blessing.

The Azalea is an un named cultivar. Take cuttings and sell them under any name you wish. You cannot look up a name in a book with pictures of azaleas and find one that looks like yours and call yours that name. You don't know what the bushes name is. Don't guess, don't assume, just name it whatever you like. You cannot claim to know what its name is. You cannot even suggest that your azalea "looks a lot like - Azalea X". Just give it your own name and be done with it. Its like someone with a black dog claiming that its a Black Lab just because it looks like a black lab. If it isn't registered with papers stating that it is a Black Labrador Retriever from a reputable dog breeder - then it is just a big black dog. There is nothing illegal about selling big black dog puppies or big round red tomatoes, you just can't claim that they are Burpee's Big Boy unless you bought the seed from Burpee's.

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Comments (8)

echinaceamaniac
15 years ago
I don't think you'll have any problems with the patent police.
tcuser
15 years ago
1) no matter what kind of potato seedlings you want to sell you can not call them BURPEE BIG BOY. It's a trademark. You can not sell a soda or whatever solutions and call them COKE.
2) You want to play game you have to follow the rule. You have to research and find out that your plants are patent or not. You cannot see the judge and tell him/her that "how can I know". You don't know then you don't play.

Could be wrong. No expert in this field. Just a thought. Anyway, if you have a big company then you may concern about it. Do you think they will pay thousands dollars for lawyer to sue you for few bucks?
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schmoo
15 years ago
"1)If I want to grow BURPEE BIG BOY tomato seedlings and sell them in my front yard is that ok"

Depends on "if" the name is trademarked or "if" the plant is patented. If the name is trademarked and the plant is not patented, you can propagate it and sell it, but you can't call it "BURPEE BIG BOY". "If" the plant is patented, you cannot propagate it "asexually" nor sell it...if that same one is propagated sexually, "technically" it would not be an exact genetic duplicate of the patented plant.

"It looks like a Rosebud. If I take cuttings and sell them out front, will I be infringing on someones patent? I mean, in this case, how would I know?"

Hard to say....but in this day and age of "sue happy" people/companies????????..................
echinaceamaniac
15 years ago
You can sell those tomatoes. I buy them all the time. They sell them at Wal-mart and even the farmer's market. The seed are patented not the plants. You bought the seed. I think you are ok as long as you don't save the seed and start selling the seeds.
echinaceamaniac
15 years ago
I agree with trainglejohn!
johnny_a
Original Author
15 years ago
Thanks everyone! I may or may not ever try to sell either, I'm just trying to get a handle on this patented thing. I appreciate the help. I am learning so much from you folks here. Thanks, John
little_dani
15 years ago
About the azalea...

You could mark it 'Red/unknown', or 'unknown pink' or whatever color it is.

Kind of like a found rose that nobody knows the name of anymore.

Janie