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Patented Plants

Posted by jbest123 PA (My Page) on
Mon, Jul 16, 07 at 21:35

Patents are good for 17 to 20 Years and can not be extended. Some plants like Crape Myrtle have 20 to 25 patents dating back to 1978. When a patent is soon to expire, there are changes made (some very minor) and a new patent assigned. My question is, If I have a plant in my yard that is 20 or more years old, can I propagate it if changes were made and a new patent assigned?


Follow-Up Postings:

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RE: Patented Plants

I would think if the plant which you have does not have those changes, you are ok to start propagating. if you bought the plant with a tag, you should be able to propagate it, as when you bought it, you bought it under that patent and have not purchased it after a new patent issued. either way, I believe it is acceptable to do so, but you can check just in case, with the patent office.


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RE: Patented Plants

I beleave patented plants may be propagate by you for your use.... NOT for resale.


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RE: Patented Plants

If a plant is patented you may NOT asexually propagate it without a license from the patent holder.

Nervous


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RE: Patented Plants

I buy one of any plant and propagate as many as I need for my garden. I do not sell any plants. All my hedges from Lonicera to Rose were grown from one plant each. Patents are intended to protect the originator from unfair competition, much like software companies from pirated copies. Al


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RE: Patented Plants

Calistoga you have just admitted to being a thief. What you are doing is stealing. You are just justifying your theft in your own mind. Do you shoplift too? There is no difference!

Nervous


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RE: Patented Plants

Ditto what nervous said. There is NOTHING AT ALL in the plant patent law that would allow for propogating for ones own use. You cannot buy one plant and then make more for yourself. What calistoga is doing is the same as if he was breaking into the patent holder's nursery and taking cuttings without paying for them.

I would also agree (it just makes sense to me) with origami_master, that if the plant you are trying to propogate doesn't have the minor changes, then it wouldn't be covered by the new patents.


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RE: Patented Plants

Wow! Is this ever a can of worms?!

Go read the Canna forum and most people are perfectly delighted that you can divide rhizomes and smarten up the garden by thinning out clumps of Canna and ordering them into regimented positions, only to do it again and again.

Canna and other plants don't care about patents either. They may be hybridized not to produce seeds, but they propogate all on their own, going under fences even!

People get their kids involved in gardening, teaching them the science of botany, how flowers are pollinated, seeds are produced and germinate and so forth, right down to dividing tubers and getting cuttings started.

It's a touchy industry I suppose. People talk about gardening, how to divide rhizomes, how to get their seeds germinating and yes, it in turn helps to sell plants. It also supports related industries like hydroponics equipment, nutrients, fertilizers, pottery, garden equipment, fencing, gazebos, home improvement and on and on. Yet at the same time we have hybrids that are patented and most people, including up to a few short weeks ago, even myself, are ignorant of plant patents. It's a plant. It's natural. This is what plants do and they propogate plants because that's what they learned to do as gardeners and it gives them pleasure to learn and exercise the intellectual aspects of gardening and creativity.

I think it would be a terrible shock to the plant industry and a couple others industries to boot, to suddenly prevent people from doing the 'hobby' part of gardening. It's possibly one of those things where it's better left unsaid. It's too darned easy for people to run afoul, not knowing what is and is not a patented plant. If I had a patent on a plant and I had hybridized it not to produce seed, but it could be propogated by division or cuttings, well, I guess I'd just have to allow it vice closing the door on the popularity of the plant because people would be afraid of being labelled criminals, waking up one fine day to find that all but their original plant might be illegal, especially if they helped its propogation along by doing what gardeners do.

Now reselling the plant. That's a different matter. While the hobbyist may intentially propogate a plant they purchased, to intentionaly do so for monetary gain should definitely be played against. And that might include trading as well. The seed exchanges are probably OK, if they police themselves to avoid exchanging patented seed, if there is such a thing. I've never heard of a rhizome or cutting exchange. But rhizomes and tubers are sold. And I've heard at least once of a cutting of a certain tree being sold.

Yep, it's a can of worms and not necessarily the kind of worms a gardener wants.


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RE: Patented Plants

Why is this a can of worms? Either you obey the law or you break it, period! I have a plant that I just received a patent on. I have invested more than 18 years of my time working this plant and many thousands of dollars. I respect anyone that has gone through what it takes to get a plant patent. I wont asexually propagate any patented plant till I have a license to do so. If you want to propagate plants work on ones that are not patented, its pretty simple! My father had a patent on a dogwood tree and a lot of nurseries asexually reproduced it without permission. This was before the days of DNA fingerprints. If I catch someone asexually propagating my plant without a license I will let my patent attorney get them. He assures me that he will hang them out to dry.

BTW Bearstate, if you collect seeds from a patented plant it is OK to grow them. It is not OK to asexually propagate a patented plant with out a license period!

Nervous


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RE: Patented Plants

Hello Nervous, my question was for a plant that the patent had expired and a sub species wad developed. Can I propagate the original species. John


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RE: Patented Plants

Hello Jbest123,

If the patent has expired you may asexually propagate it. If the plant has a trademarked name you may not sell it under the trademarked name without a license from the holder of the trademark. I hope that this has answered your question.

Nervous


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RE: Patented Plants

Plant patents do have the potential to be a "can of worms". So far, there are (in my opinion) a reasonably manageable number of plant patents. It's not like every plant you see is patented. But, as plant patents become more and more common, they are becoming more and more of a nuisance to the hobbyist.

Finding out whether a plant is patented is not hard. When you buy the plant, the fact that it's patented is written on the label. If you loose the label or just want to check on a plant you see, you can check the website below that galium mentioned in anther thread on here the other day.

My response to plant patents has mostly been to try to avoid plants that are patented. I do not want a plant that I cannot reproduce for my own use. If I see one I cannot live without, I get it, but it's a huge strike against a plant to start with (for me) if it's patented. If you want to grow and multiply a plant for your own garden, or to trade or sell, just stick to non-patented plants.

Here is a link that might be useful: PatentGenius


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RE: Patented Plants

Nervous,

I respect the patents. Have no doubt. Patenting life however, is not the same as patenting some static thing like a gizmo. The ambiguities are numerous.

Imagine a patented dog or cat or worse, a patented mouse, something that breeds in numbers? But we don't need to go there. Critters can be neutered and there is no alternative asexual problem. I think Canna and other plants that propogate naturally by rhizomes is a good enough example to pose. You can't stop that and it is not intentional by the purchaser of the plant. And because they propogate so damned prolifically, gardeners naturally manipulate them by division and that is intentional. You have people out there even, who due to religious or other belief will not kill a plant and so they don't cull out the thickness of such things, they divide and spread. They may even be heart tugged enough to give the extra away to freinds to care for, poor well meaning, but open to hazards fools that they are.

But you're right, I think I'll tend more toward seeds and only play hobbyist with plants that are wild varieties. They may have smaller blooms and may not be as tolerant to insects or be as cold hardy or some other lack of hybrid virtue, but then, people had gardens before such niceties existed and did just fine and they don't generate paranoia that you've got a legal trap growing in your garden.

I am curious as to why the patent doesn't apply to seeds. I realize hybrids can be intentionally sterile, but if they are not, why should the seeds be excluded from the patent? Because a bird can ingest them and bomb somebody's garden and the seed be in the dropping and remain viable and grow? Because they may have been cross-pollinated and are no longer applicable to the patent? What if they remain part of the original strain and have the same DNA fingerprint as you point out? That seems highly likely. How can you tell if a plant came from a seed or an asexual propogation if the hybrid is not sterile? If the possibility exists that there could be a misinterpretation, should I put out bird traps? How about them squirrels? Should I invest in a pellet gun? Put up wind breaks or cover my garden in a plastic bubble to prevent wind blown dispersal of some genetically identifiable thingie from being found in my garden?

I recently clipped branches off a plant because I needed something to prop up a screen over seed cups. So I pushed four of those branches into pots of dirt, one at each corner over the seed cups and hung the screen over them. Two of the branches rooted and are pushing out leaves! Yikes! I pray to God that they aren't something patented. Oh no! What's that growing out of my compost heap?! It's not mine, I swear it. Those damned long haired leaping gnomes were over here last month. I shooed them out, but they kept coming back. They did it. It wasn't me. I swear it.

Maybe we should all be 'nervous' and give up on gardening altogether.

BTW: What is this risky plant that you have your patent on? You seem far to nervous about it and it would scare me to have one.


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RE: Patented Plants

A seed is never an exact duplicate of its parent. I have 5 children and none are duplicates of my wife or I. As I do not make money selling plants, I cannot really relate to those who think my not buying from them is a form of stealing. Al


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RE: Patented Plants

I understand what Nervous is trying to say. It takes many years and many dollars to develop a plant and I would see why one would be upset. However, I believe looking at the situation in two ways, you'll discover that both are sensible. Cannas will naturally reproduce and spread by rhizomes. Wouldn't it make sense if you don't want it spreading you would cut away the rhizome to just enough to plant the area you want? What do you do with the extra? It seems such a shame (and it is) to throw away the divisions and cut away parts. Would throwing away the plant be a disrespectful way towards the hybridizer? Common sense would tell you either give the extra away or plant it somewhere else?

My point is, things like canna, and mints the spread rapidly and grow rapidly, I would say it is alright to split up to put somewhere else. (Nervous, hear me through). If I want a patch of say 'Margurita Mint' wouldn't you think it makes more sense to spend money on one plant and take two cuttings to form a patch, rather than spend money on three plants? From an amateur gardener's point of view, I really cannot afford to be spending money on three mint plant and it wouldn't make sense to do so.

For things like roses and peonies, I think it's ok if all you're trying to do is within your yard. It is the hobby part of gardening, experimenting with cuttings and seeds. I don't believe it can be compared to stealing if all you want to do is for yourself to get more plants. Once you but the plant from the nursery, it belongs to you. Who cares if you burn it, throw it out, or cut it into pieces and hope for it to root? Regestering for a patent, IMHO is just a protection against mass production of cuttings and to make sure you can get reimbursed for your work from nurseries and other mass propagation sources. Because seeds are sexually produced from two parent plants, the percentage of each parent plant is different, and each seed, perhaps in the same pod, can be different.

I really have no education or knowledge to say anything in this matter, but I think this is more of a common sense thing. Think abou tit this way: you created a recipie and patented it. a great cheif tasted it and was able to reproduce the same recipie for himself to eat, should it be allowed? of course! he found out himself, and he's not profiting. Just my humble opinion and my two cents, I didn't mean to offend you Nervous. Sorry if I did.

Nervous, what is it that you have patented? Just out of curosity!


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RE: Patented Plants

I was going to stay out of this but.... First, let me say, that I'm not hypocritical enough to tell you that I have never propagated a patented plant for my own use, but I am also honest enough to admit that it was illegal. "Sensible", "the natural way a plant propagates itself", "common sense","I can't afford to buy three plants", "I'm just a hobby gardener", "To teach children to garden", and on and on, are just excuses for breaking the law. None of them hold water. It's AGAINST THE LAW!

If I want a 100 foot row on Knockout roses, and buy 1, take cuttings, and grow 49 more, I have stolen the royalty due the propagator for 49 roses. He spent years and lots of money developing this rose, and he did it because he thought it would be popular with the "Hobby Gardener". We ARE the market, so get over it and decide for yourself if you are willing to steal from the patent holder. If you are, then each time you stick a cutting, or relocate a cana offshoot, from a patented plant, repeat after me, I am a thief, and go on about your business with that realization.
Jim.


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RE: Patented Plants

Bossjim1, you are absolutely exactly correct!

People can always make up excuses to be dishonest. It's human nature I guess. I am surprised though that some feel they need to try to justify their dishonesty on Gardenweb with flimsy excuses as in some of the above posts.


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RE: Patented Plants

I want to jump back in here and re-iterate. I do respect patents. And yes, I do beleive we all need to.

But yes, it is a can of worms in my opinion. There are just far too many ambiguities.

I am curious to know at this point, just how long people have been patenting plants. When did the first plant patent go on the books?

I would also be curious to know how ubiquitous plant patents have become. Folks have said that you can tell from the tag when you buy it. I think I'm going to scrutinize those tags a lot more closely from now on when I visit the local big-box.

I have only been gardening for less than a year and I am glad that I learned about patented plants this soon. Happily, my propogations from cuttings are limited to one successful and I don't believe it is patented, but now I'm going to double check. I have Canna and I think anybody with Canna knows what that means. It's almost implied. Now I'll have to double back and check on that too. Wild Canna Flacida can't have a patent, but is this really wild or even Flacida? It was here when I got here. You see how easy it is to do.

I disagree with the person who says that saving money is a motive for propogating patented plants. That is the crux of the patent and should not be violated.

What I do say, is that it is an issue laced with ambiguities and for many a gardener and hobbyist, an unkown and further, a barrier to their intellectual and creative enjoyment of the hobby. I do believe that as such, a scare regarding enforcement of patents would not do the industry good and that would include a large number of related industries as well.

I appreciate on the other hand, the mention of patents here on gardenweb as it helps to educate us all on the issue and make it known. I don't think that ramming "ITS AGAINST THE LAW" down our throats is helpful. Seek instead to educate us that patents exist and how we can safely persue the hobby without transgression and more importantly, fear of inadvertantly making transgressions. In the mean time, we will learn and adapt.

Watch those tags folks. If you want a plant that you can play with, you might want to look to starting from seeds if seeds do not violate patents and the result will satisfy as a source for your inquisitiveness and need to explore. Or simply make sure that the plant you buy has no patents.

I strongly suspect that a large percentage of gardeners who have ever divided a rhizome, tried a cutting or use hydroponics have somehow, sometime tripped a patent. I wouldn't doubt it. Keep in mind that this very forum would not exist and have any popularity were it not for the hobbyist gardener who is interested in propogation of plants.

It is a can of worms.


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RE: Patented Plants

First, I want to thank atwork for that link to Patent Genius.

Looking it over, I sighed relief that it clearly stated that tuber propogated plants were not included as applicable patentable plants. So Canna can't have a patent. Further, the list is small and doesn't include any of the plants I have messed with. Another sigh of relief.

NOT SO FAST! How do Canna breeders exercise license over their cultivars? I thought about it and knew that there had to be more to this story. But if not a patent, what protects a breeder of Canna cultivars?

The answer is ...

The Plant Variety Protection Act

This has been around since the 70s and provides certificates of ownership lasting 20 years and 25 years, depending upon the plant type.

You can find out more through the link below.

OK, so I found that in Section 111, clause e of the act, that it shall not be considered infringement upon the rights of the owner of a variety to perform any act done privately and for non-commercial purposes.

Another sigh of relief.

So while this all appears to be a can of worms, it is as atwork points out, possibly not so big a can of worms as I may have thought.

BTW: those mint plants show up on the patented plant list.

Here is a link that might be useful: Plant Variety Protection Office


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RE: Patented Plants

Bearstate, I think when bossjim1 said "ITS AGAINST THE LAW", he was responding to people that just don't seem to want to accept the facts and keep making excuses to be dishonest, not to well intentioned people like yourself.

To answer some of your questions....I think the plant patent law was first introduced in 1930. You can review all the plants that have been patented, by category, at the site I listed in my post above.

I think it is highly unlikely that a patent holder would go after an individual who bought one of the nine types of patented cannas and divided it up after it outgrew the original space and replanted it somewhere else in their yard. Patent holders are not getting their plants patented to be mean, they are trying to keep people from buying one plant to purposely propagate to sell or distribute in a manor that would potentially deprive the patent holder of income.


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RE: Patented Plants

Bearstate, plant patents have been around at least since 1930 (possibly before that, but I don't think so).

Secondly, cannas can be patented. Nine types of cannas currently have patents. The words "tuber propagated plants" have a very narrow definition in the law. It refers to Irish potatoes and Jerusalem artichokes. The plant variety protection act doesn't apply to this situation.

Sorry to be the bearer of bad news, but hopefully it's not that bad. The can of worms is still small. (-:

Here is a link that might be useful: Patented Cannas List from PatentGenius


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RE: Patented Plants

This has been entertaining in a strange sort of way. If you purchase a plant that is patented it will have a tag on it that says something like this. "Asexual reproduction of this patented plant without a license is prohibited." That is pretty clear to me. Apparently it is not so clear to other people.

Lets look at this another way. Lets say that Calistoga has worked on a plant for 15 to 20 years and invested about $30,000.00 in it and he has filed and received a patent on this plant. Calistogas plant is a very popular plant so much so that every one wants a hundred of them but they only buy one and because it is so easy to propagate they everyone grows hundreds of them and give them to all their friends. I wonder how Calistoga would feel about that?

Nervous

Here is a link that might be useful: My Magnolia


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RE: Patented Plants

Hello all, the purpose for this post in the first place was to remain honest NOT to become dishonest. jbest123


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RE: Patented Plants

You're right, jbest123, your thread has been hijacked, and for my contribution to that, I apologize.
Jim


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RE: Patented Plants

In a way it was pointed in the right direction were everyones questions were answered then everything is OK. If I was too abrasive, I wish to apologize. I just want everyone to do what is right. I dont want to see people that have worked hard to be ripped off.

Nervous


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RE: Patented Plants

Actually Jim, I think this thread is one of the more interesting, if not the most interesting thread I read and participated in as a member of GardenWeb. I don't think we totally hijacked jbest123's thread. It's congruent info. The patent acts, the original from 1930, the revised on in 1952 and the Plant Variety Protection Act of 1970 are all specific to answer the orinal question which has an answer in the text of the acts. Matter of factly, those acts were written to protect the public ability to eventually sustain the improvement, diversity and endurance of new plants, especially in agriculture, guaranteeing especially, access to science and research of discovered, invented and thus patented traits and enabling furtherance of the improvement. Some plants may even have the 20 year protection removed if the plants prove necessary enough to the public good to facilitate a better proliferation of their traits, with compensation of course, to the owner. How they'd compensate the owner, I have no idea.

Thanks to atwork again for highlighting the Canna specific inventions. I found that I could login to the US Gov Patent Office web page and search and find the patent for 'Phasion' and found a couple others there too.

Wickipedea has fairly concise and to the point articles on patenting plants. But there are some web pages out there that go into greater detail.

One more thing I found is that there has been a drive to apply the normal plant patents to sexual reproduction as well and further, there are fears about monopolization of plants through bio-engineering giants. And yes, they patent animals too, everything from biological molecules and processes from cloning to desease resistance and control.

More yet, there have been a couple cases where plants have had Utility Patents applied to them, seeds, in the more celebrated case.

Thanks for the enlightenment folks.

Nervous, is the Magnolia your prize then?


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RE: Patented Plants

I own a nursery in RI.

We stay away for any plant that can not be freely propagated. No exceptions.

If you get caught you will pay a heavy fine.

There are so many plants that do not have a patent that there is no need to even consider propagating a patented, registered or trademarked plant.

You just do not need the hassle.

For every patented plant there are a number of non-patented plants that look the same and are as nice. Sure there might be exceptions but for the most part you can find a non-patented plant.


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RE: Patented Plants

Bearstate, I propagate Japanese maples from cuttings and I also have a Blackberry that has fruit that is white and is sweeter than the normal Blackberry.

Nervous


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RE: Patented Plants

Steere & Nervous and all others lurking ...

I think there are a lot of people who don't have a clue that not every plant is in 'The Common'. Many people likely don't even read those tags and are just so excited to fit their new plant into their collection that they neglect the tag.

But I read 'em. They have clues at least as to how to take care of the plant, at least. I believe that I only have perhaps two patented plants. There are enough Crape Myrtle growing around here that at least one variety must have a patent. But I am not interested in propogating Crape Myrtle. They are nice, but like I said, there are enough here already.

I recently bought a Tropicanna. I have no intention of propogating it, but I know that it'll do its own thing.

I, like you however, love to tinker. And yes, that means that I will pay close attention to what I am tinkering with.

I can not assume that what's already growing here is not patented. So it seems that every good hobbyist needs to include as part of their procedure, a lookup to find out if their plant is not patented under a Plant Patent. It does seem clear that plants certificated under the Plant Variety Protection Act can be tinkered with if it is kept private and non-commercial. If anyone can contradict that, please chime in.

Hopefully a lot of people have had opportunity to read this discussion and will benefit from it.


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RE: Patented Plants

Couple of more thoughts.

jbest123:

To answer your question yes. After 20 years you can propagate and sell if you have all the proper license's in your state to sell plants. I would still stay away from registered and trademarked stuff.

An excellent exaple is Blue Boy and Blue Girl holly. These plants where patented a long time ago.

BLUE BOY HOLLY
Ilex x meserveae 'Blue Boy' P.P.# 2435

BLUE GIRL HOLLY
Ilex x meserveae 'Blue Girl' P.P.# 2434

They where patented in 1964 so in 1984 you could of propagated them freely. We have these plants in our line.

bearstate:

Sure it is like software. Everyone does it. The chances of a home hobbiest gardener getting caught is slim to none. But once you own a nursery and start to sell the plants you open yourself up to a whole lot of trouble.


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RE: Patented Plants

I think this is an interesting subject, and you all are far more knowlegeable than I.

I do have a firm opinion however. Probably not make nervous happy.

I buy a plant, pay my money for it, and it is mine. It is in my yard, and not bothering anybody else. If I want to take a cutting and plant the rooted cutting in my yard, I will do so and not worry about it one whit. If the patent police want to get a royalty from me, they only need present a bill, I would probably pay it without a fuss.

Understand that I am not selling patented plants, nor giving them to anyone else. These are mine, in my yard, and believe me, what happens in my yard is my business.

I have always heard that I could propagate a patented plant for my own use. I understand that a patent protects the person who has worked so hard to bring that certain plant to market. What I am saying is that once it is mine, in my yard, and not going anywhere, I will do what I please with it.

And for the record, I have 5 KnockOut roses in my garden. I purchased every one of them, and have never taken a cutting to be rooted from any of them. But if I wanted another KnockOut, I would probably just snip, snip.........and I would have another rose bush. If I didn't care that it was small for a good while, that is.

I just get real nervous when people start telling me what I can and cannot do with MY property.

Janie


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RE: Patented Plants

Little Dani, you may do what you want and nothing that I could say can change that. There was a man that I used to work for that would say "A padlock will keep an honest person honest" just like this patent will only keep an honest person honest. I dont have to worry about the home gardener asexually propagating the Magnolia that I have the patent on, they wont be able too. It is not something that you can just take a cutting off of it and stick it in a glass of water and it grow roots. I just hate to see other people that have worked so hard to bring something to the market place to be ripped off.

Nervous


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RE: Patented Plants

I think I said that I have paid for every KnockOut that I own. I also have paid for all the other patented plants in my yard.

I am not about cheating anybody. I would need to see the law that tells me what I can not do with my property, on my property. Maybe it is a Texas thing.

Janie


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RE: Patented Plants

Are people opining that if I buy a patented rose and a cane falls over and takes root that I have to destroy that new plant?

You see, I am having a difficult time envisioning a patent law where some 'fair usage' is not at least implied.


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RE: Patented Plants

Gee Albert, just Google the 'Plant Patent Law' and read it for yourself. Unlike the European Plant Patent law, the U.S. law does not allow for 'Own Use'.
Sorry,
Jim


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RE: Patented Plants

How do we know for sure if we are buying a patented plant at a plant sale? Our local Garden Club has a big plant sale every spring. They sell thousands of plants. I just wonder how they keep track of what they sell.


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RE: Patented Plants

If the plants being sold are grown commercially, they will have the patent info on the tag that comes with the plant. If they are being grown by club members, you can't know for sure. You will have to depend on the honesty and knowledge of the grower. If they are grown by club members, I wouldnt loose much sleep over whether they were patented unless you plan on propagating the plants you buy. It's highly unlikely that the patent holder will come check out your yard to see if one of their plants is there illegally, and if you received a patented plant by accident, through no fault of your own, your conscience should be clear. Unless you are trying to do something wrong, spend your time worrying about something more important.


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RE: Patented Plants

  • Posted by rian 7va (My Page) on
    Thu, Jul 26, 07 at 10:12

This thread has been very informative, I've always assumed that a patented plant would have an own use exception.

Like Janie, I find this a difficult pill to swallow, so it isn't just a Texas thing. It seems as though you only lease the plant for its lifetime. You provide it with a home and care, but it really belongs to someone else.

Guess the answer really is to read carefully and avoid buying any patented plant. Why lease when you can own?


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RE: Patented Plants

I felt I needed to "weigh in" on this... I have a Ph.D. in Agronomy, and worked for about 5 years at Iowa State University in the intellectual property office there... So I think I can help you out with this discussion.

The plant patent precludes others from asexually reproducing OR selling the plant without a license; OR using the patented plant without purchasing it. The plant patent is for a particular genome, so a sport or mutant of the plant that is patented is not "protected" by the patent. (The sport or mutant could be itself patented, even by you). The patent expires 20 years from the date of the patent application. After that time, the plant is public domain. Asexual reproduction DOES include some seeds! The type of seeds included in plant patent provisions are Apomitic Seeds. These seeds are produced by some plant species such as Kentucky Bluegrass and Blackberries. These plants have the ability to asexually reproduce through seeds, meaning the exbroyos develop without a male gamete. It ensures that the seeds will produce plants identical to the mother plant.

If you are asexually reproducing the patented plants that you have purchased without a license, you are guilty of patent infringement.


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RE: Patented Plants

What is meant by the term 'sport'?


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RE: Patented Plants

A plant sport is part of the plant that significantly varies from the rest of the plant usually in color or form. An example would be a plant with green leaves that develops a branch with variegated leaves. Sometimes these sports can be asexually propagated so that the new plant contains the characteristics of the sport.


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RE: Patented Plants

Plantdoc is it like music? You own the cd or record it came on but the song itself is owned by the artist who produced it? It would be not the same as music as you only make a different kind of copy for your own use in a different medium, such as a cd to a cassette for personal use. Is that right?


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RE: Patented Plants

Blue_velvet_elvis, I can understand your comparison. It may be a way to understand parts of the thinking behind the laws. The many differences in the plant patent law and music copyright laws make it hard to directly compare many aspects. If you would like to know more about plant patents, you might want to review the law at a sight like the one I will provide a link to below. Chapter 15 covers plant patents. Copyright laws can also be reviewed on the Bitlaw site if you have further interest in them or for comparison.

Here is a link that might be useful: Bitlaw U.S. Patent Laws


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RE: Patented Plants

nervous...first..congrats on your new magnolia!! very cool...would it be too rude to ask what the u.s. patent office asks, (price-wise), to get a patent?? i know that you said you have years and money tied up in it, but aside from that, i'm just curious as to what uncle sam's take is?? donna


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RE: Patented Plants

I hope this helps.

Here is a link that might be useful: Patent Office fees


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RE: Patented Plants

The problem I have is that many patented plants in my garden are not stable. They either fail to bloom the way they were described or they quickly revert to a not-so-special version, or they don't return the next spring even though the hype promised extra hardiness. I no longer believe most of what I read about the newest and improved versions of plants.

For instance - a clump of 'Red Dragon' Persicaria in my flowerbed throws a sport branch without the dark shield pattern. It just randomly shows up without any input on my part. Now I see that this color pattern is available commerically with a fancy name attached along with a patent. How can they claim the hard work of isolating and refining a new and improved color form of a garden classic when it just randomly shows up? And how can they claim ownership of old varieties simply by claiming to have improved them when everybody can see that the plants are not any better than the ones our grandparents grew? Artemisia 'Oriental Limelight'? come on.

I agree that there are some plants out there that took years to develop and those that did the hard work deserve to be compensated fairly. But there seems to be a rush to patent anything and everything unusuall that randomly shows up and then hype it to death. I was there way back when this same crowd pushed Bradford Pears down our throats - what a treasure it is. thanks.


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RE: Patented Plants

I have recently taken cuttings from both Pee Gee Hydrangea and Star Magnolia. These plants have been in my yard many years therefore, I don't have the tags. I have searched nurseries in my town to check the tags to no avail. Can anyone tell me if they have patients?

Thank you in advance,
deannab


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RE: Patented Plants

Deannab, you can check plants yourself for potential patents at PatentGenius. You can find the link to it by reviewing my earlier response above.

Hydrangea paniculata 'Grandiflora' (Pee Gee Hydrangea) is not patented. Magnolia stellata (Star Magnolia) refers to a species not a cultivar. Species are not patentable. If your Magnolia is a particular cultivar, you'd have to check for a patent with it's particular cultivar name.


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RE: Patented Plants

My vote is that Nervous is wrong. I don't see how you can reasonably expect someone not to clone their property. Its theirs bought and paid for. If they wanted to cut it up and eat it as a salad than thats their choice. Property is property.

I have to believe that its just like a music CD. You can make copies for yourself so long as you don't sell them. Whats more with any seeds produced, I would think those would be marketable but I am less sure about that.

Making copies for one's own use is not stealing Nervous. You should apologize for calling that other guy a thief.


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RE: Patented Plants

Why not type 'U.S. plant patent law' in a search engine and see what you come up with?
While you're at it, look into 'copyright infringement'.

As has been said repeatedly, seeds aren't generally covered under plant patent law, because the law covers asexual propagation. Seeds at least have a chance of not being the same plant.


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RE: Patented Plants

I can't believe what I am reading in this forum. The nit picking is ridiculous. I applaud mcccommas and hope nervous takes some xanax and puts the worms back in the soil. The laws were probably made to target nurseries. No one needs protection from the amateur hobby gardener. It's not worth anybodies' time or effort to monitor those of us who may or may not even realize we are cloning a patented plant. A nursery, yes, it might be worth enforcing the law. When we take life THIS seriously we end up in psych wards taking xanax. Ask me I work in one. I meet people like nervous and atwork every day. We have to leave room for ambiguities. When we don't we loose our sanity. Bearstate, you sound very healthy.


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RE: Patented Plants

I am thrilled to kmnow that I might not just be mean and criminally inclined.

What I am hearing is that Nervous owns the patent on his magnolia, he will gladly allow you to spend your money for one, but it still belongs to him.

I agree that hard work should be compensated. That is why nurseries who wish to propagate the patented plants pay a royalty. I would be happy with the royalty, and quit worrying that someone is going to cheat me. It only makes us old before our time.

I am sure that there are none here who would cheat anybody. We just want to stick little pieces of plant material in some dirt and make it grow roots.

Janie


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RE: Patented Plants

I found this on the Patent Office web-site.

"Infringement of Patents

Infringement of a patent consists of the unauthorized making, using, offering for sale, or selling any patented invention within the United States or U.S. Territories, or importing into the United States of any patented invention during the term of the patent. If a patent is infringed, the patentee may sue for relief in the appropriate federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of the infringement. In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court. The defendant may also aver that what is being done does not constitute infringement. Infringement is determined primarily by the language of the claims of the patent and, if what the defendant is making does not fall within the language of any of the claims of the patent, there is no literal infringement. "

I hope this clears up people justifying theft in their own mind.

Nervous

Here is a link that might be useful: Infringement of Patents


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RE: Patented Plants

Infringement is determined primarily by the language of the claims of the patent and, if what the defendant is making does not fall within the language of any of the claims of the patent, there is no literal infringement.

Is is rather like part of my thinking.


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RE: Patented Plants

"Infringement of a patent consists of the unauthorized making, using,"

That looks very clear to me. But, I don't guess very clear to you Albert?

Nervous


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RE: Patented Plants

Following Mccommas's and Sunnytops's line of thinking, "my vote is that (the cop that stopped me the other day for speeding) is wrong. I don't see how you can reasonably expect someone" to drive so slow on a little country road without that much traffic. And besides, "the laws were probably made to target" people driving at night or something. "The nit picking[sp] (of that cop) is ridiculous." "When we take life THIS seriously we end up in psych wards taking xanax." "We have to leave room for ambiguities." Fifty in a thirty in broad daylight isn't that bad.

"I am thrilled to kmnow[sp] that I might not just be mean and criminally inclined." Maybe if I go to court, the judge will just throw out the case and tell the cop to stop nit-picking.

p.s. Maybe you guys could post your contact info here so that the amateur hobbists that have gotten in trouble for this so far could contact you. Since you know so much about the law, maybe you could give them some free legal assistance to get them out of trouble!


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RE: Patented Plants

Not nice, atwork.

Nobody is claiming to be a lawyer, judge or cop. Just offering our opinions on the subject. Exactly what you are doing.

BTW, what plants do you hold patents on? I will make a note to not buy those also, just on the chance that I might not be able to resist taking a cutting or two.

Janie


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RE: Patented Plants

This has been very entertaining. I have enjoyed several beers reading the statements some have made justifying breaking the law.

I have posted a quote from the patent office (in a previous post) web-site pertaining to the asexual propagation of patented plants. If you chose to ignore the law and steal from the patent holder that is between you and the patent holder. Like I said on my plant that I have a patent on the home Gardner has a %.0001 chance of propagating it. I really wont lose any sleep over this because Im not the one breaking the law.

Lets keep the absurd posts flowing. I want to drink more beer this afternoon.

Nervous


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RE: Patented Plants

Janie, I do not hold patents on any plants and often try to avoid patented plants unless they are something special. I like to feel free to propagate the plants I have when I choose to do so.

I have tried to be VERY helpful in posting links and information about the subject. Unlike many posters, I'm not just posting what I think might be the case. I have researched the areas I commented on BEFORE posting. Everything I have posted can be verified.

I don't understand why people think they can make up the law as they go. The laws are not just there for certain people or to follow when you think it's a good time to follow them. My example was to try to make an analogy for those that had a hard time understanding that they law was the law and it can't be applied ambiguously.

Janie, if you don't want to hear the facts, then you don't have to listen. If you would rather just hear what pleases you, then sorry. I am here trying to provide information for those that are interested.

So, Janie, maybe your post was "not nice" either!


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RE: Patented Plants

Quote:
nervous --

if you collect seeds from a patented plant it is OK to grow them


I thought Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995) changed that. Am I wrong?

I also see where some may be confusing criminal law and civil law. My spouse, a lawyer who supervises financial audits in the public sector says she would never, ever, even attempt to comment upon patent law -- however, when pressed, she said that even though she had not studied it in 35 years she thinks that patent law is probably civil law. If it is civil law as described in the freshman textbook someone must cause you harm before you have a claim against them.

The old lady propagating the patented African violet which she could not afford but which she got for her 80th birthday is not harming you, is she?


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RE: Patented Plants

Another forum on Propagation would not post my original question. I now understand why. Shouldnt you guys, on both sides of the discussion, be out gardening or at least propagating something? John


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RE: Patented Plants

jbest123,

I'm somewhat amused, but not entirely without understanding, that this thread is racking up posts. Didn't I say that it was a can of worms?

Folks,

The solution is simple enough. Respect the pantents. Take a few minutes to research the plant you want to clone. This thread has provided tools like PatentGenius to help you do it. Also, read the tags when you buy. Avoid pantented plants if you plan to tinker.

Now here's a curve ball ... so far, only US Plant Patents have been considered. How does one identify International Plant Patent rights?


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RE: Patented Plants

Hehehee, Bearstate! Now that IS a can of worms!

I am not going to propagate any patented plants either, and I do research what I buy just for that reason. But I thoroughly resent the idea that I may or may not do as I please with MY property.

John, I have been sticking cuttings like crazy until the last couple of days. The temps are 100 degrees or higher, with a heat index of 107 today. The low is around 87 degrees. It is hard to keep myself hydrated, much less stress my poor little cuttings in those temps.

I like this forum because everybody gets along here, and there is seldom any friction. People try to help each other. I like that.

Sooooo. I quit. I will refrain from taunting anyone else about cutting up their plants without permission. I apologize, I am sorry.

(mumbling to myself here)LOL
Janie


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RE: Patented Plants

Thank-you for your comments little_dani. It's the WAY we are issuing our comments that is opening up a can of worms. Our taking life too seriously is causing us all to impose our opinions by attacking those with different opinions. The can of worms was opened when someone issued name calling,ie.thief, while imposing his/her opinion. Anyone who knows the rules of fair fighting, gone to marriage counseling,conflict resolution, knows one of the cardinal rules is 'no namecalling.' If anyone got anything else out of this forum, I hope we all see the affects of breaking one the cardinal rules of fair fighting.

Little dani, it's not any cooler up here either. It's like the dead of winter as far as getting much gardening done. Around here winter and summers can be unbearable.
How's about we break out the diet soda and join Bearstate with his booze drinking. A litte advice, if you feel you were taunting people and it makes you feel better to apologize so be it, but no one ever needs to apologize for having a different opinion. If you think it's okay to propagate on your own property, the others will just have to learn to agree to disagree with you.


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RE: Patented Plants

Who're you calling a boozer?!

Actually folks, I rarely drink for recreation, amusement or the amelioration of psychological suffering.

When I do drink, I drink ( alcoholic beverages ) as a luxury supplement to a meal and even that is rare. I like a good wine sometimes with a meal and a good beer sometimes. My favorite grape is a Sauvignon or a Reisling and late harvest wines like Ice Wines and Muscato. I like beers with flavor, especially the darker beers and the Hefe Weizens. I loathe those cheap ales that are only sourced and bought for one purpose, getting skunked. There are fruit juices and sodas and coffee and tea, but sometimes after a round robin tour of these, wines and beers have their place in promoting additional variety in beverage intake. That's all.

I'll only admit that sometimes in a crowd, I may tap a beer to loosen up ... like a lot of people do, but not to get ripped. These days however, I am rarely found in a crowd.

Beer and wine are food, not mind altering substances. Think of them that way and you'll be better off in life.

Just had to set the record straight. :)


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RE: Patented Plants

I'm not a lawyer, judge, or cop, but my contact info is available, I believe, so anyone who is interested in learning the rest of the cardinal rules of fair fighting are welcome to contact me. LOL And I'm human too so I don't profess to never break them myself from time to time. If I have broken any in my postings I apologize. But quite honestly, I do disagree with some of you. Slurp, slurp.


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RE: Patented Plants

Bearstate, you silly! lol I was only kidding.


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RE: Patented Plants

I didn't apologize for my opinions, heehe. I apologized because I recognized that we just could not agree, and I thought it was just time for me to back off. I definitely have my own opinions and I will defend them, but I don't like to see us up in arms.

I don't drink at all anymore. I did used to love Tangurey w/tonic and lots of lime. I mean, I LOVED IT! I could drink it with a straw, it was so good. However, since a bout with hepatitis, I tend to want to preserve my liver, so I only indulge in Diet Rite cola. Bummer.

LOL, Janie


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RE: Patented Plants

jbest123,

Now your thread has been hi-jacked. Wasn't before, but is now.

Nervous, you shouldn't of mentioned those beers. Things have disintegrated since then and some people don't seem to even know who mentioned the beers.

I'm outta here!


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RE: Patented Plants

Bearstate, I have never posted when I have been drinking. I do enjoy a few beers after I have been in the greenhouse sticking cuttings all day. So far this season I have stuck more than 12,000 cuttings. Only 5,500 more to go.

Little Dani, stealing is theft plain and simple.

I am not trying to BS or taunt anyone.

Nervous


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RE: Patented Plants

I'm sorry Bearstate. I was sure it was you amusing yourself. I did look for the thread just to make sure but I couldn't find it through the maze but I was sure it was you. I prefer diet dew due to its flavor. I only used the word booze to sound goofy. I'm like that.


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RE: Patented Plants

Every patented plant for sale in a retail nursery should come with a WARNING LABEL, just like what you see at the beginning of a DVD movie, and at check out the purchaser must sign an acknowledgement statement vowing never to propagate this plant! Now that would be an interesting marketing experiment sure to increase the bottom line!!!

Think I'll adjourn to my garden with coffee cup in handI may need to "prune" a few patented plants just for the naughty thrill of it - under the "don't ask, don't tell" theorem.


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RE: Patented Plants

Well I see this chain has been dead for four years but still I wanted to weigh in and thank you all for a very nice summary of all sides of the patent and pvp issue. Very informative.


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RE: Patented Plants

I don't see any patent police coming around looking what i'm doing!! If i wanna take a cutting i do. I don't sell anything so there's no problem. Fill the world with plants!! more more more!!!!!

ps if someone DOES snoop around your yard, sue them for trespassing!!

pps. you'd be surprized all the cuttings you can get just walking around the 'hood!! power to the plants!!


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RE: Patented Plants

Dunning,

Thanks for bringing this back up. I think it's the one I have looked for a few times but wasn't able to locate.
___________________________________

Mainblaine456,

Hopefully your neighbors in the 'hood' keep a close eye out so that you don't steal their plants. You seem quite proud of your life in crime!


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RE: Patented Plants

Thank you for all the information!

I personally stay far away from patented plants and would never knowingly buy one.

I do have a couple of questions about this though that I'd really like to know the answers to, if anyone is still watching this thread. Frankly, I find the law in this is not to be very clear at all!

Theoretically, if a patented plant accidentally finds its way to your land naturally (say the wind or a bird or rodent dropped an asexual seed), are you legally liable?

According to the link below, "Grant of a patent for a plant precludes others from asexually reproducing or selling or using the patented plant."

The law says nothing about the plant reproducing itself without this *other* person input. Let's say you buy a patented plant, stick it in your garden, come back a few weeks later, and find 2 additional plants sprouting up nearby. According to the patent guide you did not infringe on the patent rights, because it wasn't you that did this. And if this is the case, then shouldn't any patent owner looking to enforce his patent through fine or lawsuit, be required to prove that that person actually personally reproduced the plant? Or was this law made so that everyone's guilty until proven innocent?

I'm just very curious on the reasoning behind this law and its application.

Here is a link that might be useful: U.S. Patent and Trademark Office: Plant Patent Guide


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RE: Patented Plants

WafaaK,

I think you are dreaming up scenarios that go beyond reason. What are the chances of a rodent taking a piece of a patented plant to someone's yard and then that plant be able to successfully grow in that yard and then the person in the second yard realize the potential of that plant and either highlight it enough or reproduce it to the point that the patent holder would find out about it and want to take action? In an imaginary world where that could happen, the patent holder would likely have a case (especially in light of the similarities with some of the rulings regarding Monsanto's gene patents).

In the case of plants multiplying on their own, I think it would depend on the situation. One could dream up some bizarre situation where there might be a problem, but, in the history of plant patents, I don't think such an issues has been a problem.

I think there are millions of things (a supervolcano, large meteorite impact, or megatsunami occurring in the next few decades, for instance) that are worth worrying about more than these hypothetical scenarios (unless of course, someone is contemplating finding loopholes to exploit).


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RE: Patented Plants

I was taught in course that the community college had on the AFB years ago that you did not violate anyone's patent rights unless whatever you were doing caused some loss or damage to the patent holder. Do you have reason to disagree with that?


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RE: Patented Plants

"I was taught in course that the community college had on the AFB years ago that you did not violate anyone's patent rights unless whatever you were doing caused some loss or damage to the patent holder. Do you have reason to disagree with that?"

Yep, the actual law, which clearly makes no such exception. Sorry, but the people at the community college just didn't know what they were talking about on this matter. Patent holders are not asked to show any loss or damage, at all, to uphold their patent rights. Actual damages may be determined by loss or damage, but punitive damages and "cease and desist" orders do not depend on such determination. This is similar to saying you don't have to stop at a stop sign unless there is traffic crossing your path at the time you reach the sign.


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RE: Patented Plants

"I think you are dreaming up scenarios that go beyond reason."

Maybe. All scenarios go beyond reason until they happen. A habit that comes from being an engineer is to always consider unlikely but possible what if scenarios and cover all angles. You have to in order to have a reliable product. I saw this thread and not being very knowledgeable about law in general, I was just academically curious about how the logic works (Apparently, not too well, but well enough I suppose.)

cheers.


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RE: Patented Plants

Hello All,
I am trying to wrap my head around this whole patented vs non-patented thing. Could someone please help me answer these questions I have?
1. I have "Easy wave white" petunias. When I looked them up on numerous patent list they are not listed... is it ok to take cuttings from these?
2. If the patent is more than 30 years old, can I take cuttings/rhizomes from those plants?
3. Can you germinate seeds from a patented plant that naturally goes to seed?
4. Is there any way to tell the plant has a patent other than looking it up on several patent lists? Which of these lists is the best one to use?
5. Things that produce bulbs and tubers and rhizomes that should be divided to maintain healthy plants, can these be divided, can they be given away, can they be sold?

Thank you all so much.


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RE: Patented Plants

1. You can see a list of all patented petunias at http://www.patentgenius.com/class/PLT/356/1.html
I think all of the wave-series petunias are hybrid strains, rather than genetic individuals, anyway. None appear to be patented (or patentable, under plant patent laws).
BTW, the wave-series names are trademark names, so you cannot use those names when/if selling the plants without permission. You can use the cultivar name (if such exists).

2. yes

3. absolutely (but to clarify, we are talking about plant patents, and not plant variety protected plants or gene patented stuff, both mostly related to agricultural crops)

4. PatentGenius should list them all.

5. They can be divided. Increases not replanted at the same location should legally be discarded. I think as long as you replanted extra in your own garden you would be relatively safe (I cannot imagine a patent holder trying to sue you for that), but you should not give away or sell any increase. You could resell the plant (not keeping any for yourself) if you met the legal requirements for selling plants in your state (likely, you'd need a nursery license).


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RE: Patented Plants

Brandon7,
Thank you so much for your information. One more question, well, two actually.
1. Should every tagged item you buy at the store be marked whether it is patented? I was looking around and I have seen some tags that say unauthorized propagation of this item prohibited and on others I don't see that.
2. I was reading on Parkseed and Ball Horticulture that you cannot propagate any plants you get from them... is this true even if they don't have a patent on the plant?

Thanks again! You have been a huge help!


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RE: Patented Plants

1. If the patent holder hasn't ensured proper notification of the patent or patent pending status, liability may be limited. In many cases, only future events (after proper notification has been received) can be considered for damages. So, in most cases, if the plant is not properly marked (and you can show that), you are safe in propagating it unless/until you are properly notified. There are complicating factors here, so it's hard to give a brief, but all encompassing, answer.

2. Unless their plants are covered by plant patents or other protection (PVP or gene patents - again, mostly used for certain agricultural crops), they have no control over whether or not you propagate them.


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RE: Patented Plants

Thanks again! You have been a huge help! I was really starting to get nervous about trying all these different ways of propagation when I stated reading this forum, but now I feel pretty good about the information I have.
You've been wonderful!


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RE: Patented Plants

Ok, now I have another question,
PPAF - Plant Patent Applied For... does this mean I can take cuttings until the patent goes through? Or no because they are in the process?
Thanks again...


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RE: Patented Plants more

And what does PAS stand for when looking in seed and plant catalogs?
Thanks


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RE: Patented Plants

PPAF - No, PPAF demands the same respect as a patent. Think of it as a temporary patent.

PAS - nothing universal, that I know of. There are a couple of possibilities, depending on the context.


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RE: Patented Plants

Nervous, please let us know all about your patented plant. It's name, etc. I will avoid it like the plague. I don't want to buy your plant.

Patenting plants is utter BS. It's a plant. So you cross polinate and get a viable seed. Big deal. It can happen naturally. My father-in-law has a peach and nectarine growing next to each other. It cross polinates every year. Delicious fruit by the way. We planted one of the seeds and, to our surprize, it grew. The fruit has the same characteristics of the peach polinated nectarine tree.

So we find out some idiot patented this cross and we find out we have been living a life of crime.

As I said, utter BS. I avoid patented plants at all costs because I don't want to support the practice.


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RE: Patented Plants

Mit AIlbu,

If you don't want to grow patented plants, that's certainly your decisions. But your apparent attitude towards those that choose to patent their plants and towards the patent system shows a true and utter lack of understanding of the whole situation!

What about books? After all, they are just words on a page! Free speech, ya know... And then patented medicine. Why would anyone want to patent something that could save lives! Yea chaos and anarchy! Who needs capitalism? Is that it?


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RE: Patented Plants

I must admit that this has been a pretty amusing discussion to read, seeing both sides strong opinions on the story.

My family has been in the flower business since the 50's and holds several different patents on different varieties of chrysanthemums. How did we get these varieties one may ask? Well when you are a commercial grower and have hundreds of thousands of pots of plants passing through your benches every year, nature runs its course and you get random natural mutations or "sports". If you have a crop of 10,000 purple mums and a few flowers one 1 plant look surprisingly different (in a good way) then often times that plant is set aside, cuttings take from it and after you can propagate it for a few generations and see that it is still still looking good, the proper height etc etc. Then you may consider patenting the plant.

Why? Well because 90% of the cuttings that are commercially available are already patented (because suppliers stopped growing the non patented versions because they dont make as much money off of them), and customers demand plant X. Well if its patented and we have to pay 7c or 9c per cutting instead of 3c then why shouldn't we be making the 3 or 4c royalty versus paying it to some other guy???

Honestly if you bought one of our plants and started propagating it at home to fill up your garden, good for you! Are we going to come after you? Nope... The only way we would ever care was if someone was making money propagating these plants and either selling cuttings without paying the royalty or selling the plant its self without paying the royalty. And even then they would have to be dealing in volume. Not 100 plants, but thousands of plants. 1,000 plants at 5 cuttings per pot and 3c per cutting would be $150 to us which is 2 peoples pay for a day.

Its not cheap to get a plant patented after all the lawyering etc gets figured in, as well as all the man hours to propagate thousands of cuttings from 1 single plant, while paying for heating, electricity, fertilizer, soil, pesticides, water, pots etc. A lot of growers operate on a razor thin margin these days, maybe 5c to 25c per plant, then you throw in places like home depot only wanting to buy stuff on a pay per scan basis (where they let it sit outside and dont water it, over water it, kill it or whatever and then want a credit for their stupidity)... It all adds up, and there is a reason there are fewer and fewer growers still in business year after year.

So buy patented plants, dont buy them, do whatever floats your boat. Just keep in mind that there still are a few small family operated growers out there, and to them and their families its their livelihood.


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RE: Patented Plants

This is an interesting topic. Not that interesting I guess though because the thread is so long I skipped the second half, because I wanted to comment. So I'm sorry if I missed something.
I come from both sides of the topic. I was a gardener for 40 years before I became a "professional". I have thousands of plants. Because I was not a "professional" when I started collecting them there are large numbers that no longer have "known" names or origins. Are some of these plants patented? Probably. Am I going to spend weeks trying to look them up? No.
I am now a licensed grower. Will I sell plants if I don't know what they are? No. Will I ever buy a patented plant again? No. Just my personal opinion, but I think you people who try to claim a plant is "yours", are first of all shooting yourself in the foot, because it steers many people away from "your" plant.
Second, just because it is a law doesn't mean it is a good law. Many laws are not good laws. Will I break the law on purpose? No. Will I tell my plant not to grow or throw it in the garbage if it does grow? No. Will I sell it if it's patented? No. Do I think it's stupid? Yes. Just my opinion. I believe that God made that plant....not you.
I breed plants as a hobby, too, I use only non-patented plants and if I ever get a really nice one I want everyone to have it. Please grow as many of them as you want. Share the beauty. If you want to buy them from me that would be nice, but if someone else is selling them cheaper, then I won't fault you from buying if from them.
Again, this is just my opinion. If I was a politician; which I'm not I would try to change this law.
One more thing, no matter what the law is I don't think it is a good practice to call your potential customers thieves. I would have to guess that 90% of the gardeners no nothing about patent laws and that all of those people are honest people. Like I said. Not all laws are good laws. The attempts to change this in the 1070s are a step in the right direction.
Catrina


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RE: Patented Plants

"I think you people who try to claim a plant is "yours", are first of all shooting yourself in the foot, because it steers many people away from "your" plant."

Sure, some may refuse to read copywritten novels. However, those people are definitely the exception. Same with patented plants, the market is huge and is just as good, if not a little better, than for the non-patented types.

"I believe that God made that plant....not you."

I bet you'd also claim that God made the paper that the author writes on, wouldn't you? How about the pigments for the artist's paints? If you understand the process of breeding and growing plants, you'll easily be able to see the similarities.

"If you want to buy them from me that would be nice, but if someone else is selling them cheaper, then I won't fault you from buying if from them."

Your example falls far short, if you are using the statement to argue against panted plants. A more direct equivalent to what you are saying is to suggest that people should buy copies of novels from someone who is printing them off in the back room rather than buying them through sources that obtained them through the proper channels, insuring that the author was paid something for his or her work.

"One more thing, no matter what the law is I don't think it is a good practice to call your potential customers thieves."

It's not the customer's that deserve to be called thieves, it the thieves that deserve the title! Customers (the ones that pay) should not be mixed up with the thieves (those that try to avoid paying by using illegal propagation)!

"I would have to guess that ... all of those people are honest people."

Ya don't get out much, do ya? LOL (-:


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RE: Patented Plants

Nervous - Is your white blackberry thornless? Is it erect, semi-erect or vine? Where can it be purchased?


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RE: Patented Plants

If I buy a patented plant and want to asexually propagate it because I enjoy propagation, is there a method for paying a fee to make it a legal propagation?


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RE: Patented Plants

"If I buy a patented plant and want to asexually propagate it because I enjoy propagation, is there a method for paying a fee to make it a legal propagation?"

That depends on whether the patent holder will allow that. In many cases, if you contact the patent holder, they'll give you permission to propagate for free as long as you promise not to sell the new plants. In some cases, they'll ask for a small fee (sometimes pennies). In a few cases, they may not give permission. It's just up to them. One possible reason they might not want to give you permission is if they have some kind of exclusive contract with some grower.


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RE: Patented Plants

As far as I know it works differently in Europe. You can only patent plant name not plant itself. That means that once you buy patented plant you can propagate is as much as you want even sell it but you cannot sell it under patented plant name. Should you do that you will be fined. I reckon this make sense and to be honest I can often see patented plants with small name change like physocarpus opulifolius "Diabolo" sold as "Diablo". Nobody seems to mind it. Never seen it in large nurseries tho as royalties are not that expensive here. I myself prefer paying royalties, but should I want to propagate something I do it and I definitelly don't feel any remorse (not for commercial purpose). Criminal mastermind that should be put to jail, right? Should you want to feel angry about it, suit yourself.


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RE: Patented Plants

Paul,

I'm no expert on European law, but I can tell you that much of what you report is just plain incorrect. First, names cannot be patented in the EU (or probably anywhere). The EU does have Trade Mark protection, used to reserve names used in association with selling the plant or group of plants, that is actually fairly close to what the US system is (or is supposed to be). Trade Mark protection is about origin (who is providing the product) more than about the plant itself (trademarks are not for cultivar names, in other words).

Next, plants can be patented in the EU. There is currently debate about what can and can't be covered, but so far the EU Plant Patent has been used somewhat similarly to the US Plant Patent. There is also a Plant Variety Rights coverage which corresponds to our Plant Variety Protection. There are also some other related legal protections for plant "inventions" in the EU. Finally, individual EU member countries often provide similar, but alternate, methods of legally protecting plant "inventions".


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RE: Patented Plants

Phew, thank goodness we are a bit more reasonable in Europe where we can propagate to our heart's content. There has been far too much shouting about thievery for my taste. Do you think it is appropriate to 'patent' bits of the human genome? Stem cell research arising from HELA cells? Please don't snivel on about the huge amounts of hard work these bio-engineering comoanies are doing (and the mighty profits they demand)....see me weep in solidarity (not) as they refuse to allow for generic medicines to be circulated in the third world.

But then, I rarely, if ever, buy ludicrously expensive clonal varieties of freely available species - my geranium wallichianum is as lovely to me as Rozanne, and as for the crappy echinaceas and coreopsis pumped out for those who must have novelty???? I do propagate whatever plant I feel like - the skill is mine to use as I wish. Call me a thief and I will call you a greedster.


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RE: Patented Plants

Campanula,

I thought you lived in the UK. At least that's what your profile says! If your in the UK, doesn't that mean you are in the EU??? At least it did the last I've heard.

Next, what on Earth does patenting bits of the human genome have to do with this thread? ...or with anything in this Forum? Are you familiar with the Hot Topics Forum. Your post probably would be more appropriate there. You could change your screenname to RobinHood and preach until your heart's content.


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RE: Patented Plants

Yes, the UK is part of the EU and as such, we can propagate plants for our own use but not sell them or profit from them.....which strikes me as eminently reasonable since our local police force probably have better things to do(such as preventing real crimes) than policing our back gardens to see if we are 'stealing'.


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RE: Patented Plants

"...we (in the EU) can propagate plants for our own use but not sell them or profit from them..."

You could be right about that specific point, Campanula, when it comes to patents (not for Plant Variety Rights, though), but I would like to see what you base that on. My reading (although it was brief) of EU plant patent legislation seems to indicate that the patents "shall extend to any...propagation or multiplication" resulting in plants with the same characteristics as the patented plant. I see no exemption whatsoever regarding personal use. It is possible that that was added later or is covered in some other law, but I haven't run into it. Many people here in the US believe our laws exempt personal use cases, which it certainly does not.

I am actually surprised that this type of thing is not more easily researched online. The US laws regarding plant patents are pretty easy to find online at a number of sites, but the EU regulations/laws seem to be deeply buried in raw legislation documents (at least it seems that way from my experience).


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