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thebeatgroover

Propagating Expired PPs

thebeatgroover
9 years ago

I've spent a good chunk of time doing research on plant patents today with various resources available at the USPTO website and threads on gardenweb and other forums. Despite this, I can not find a good answer to a specific question: what is the legality of propagating cuttings and selling plants with EXPIRED plant patents? Every other source I've read addressing plant patents is only about home growers trying to get away with propagating them and keeping them for own use. I understand that plant patents last for 20 years (on roses, my crop of interest). Even within the USPTO resources, however, there are differences on when this 20 years starts. According to the PVPA, it is started the date the patent is granted. The FAQ on the USPTO website says the patent expires 20 years after the date the application is filed. There can be a noticeable difference for some varieties - it can take about a year for a patent to be awarded.

My specific case is this: I run a nursery and our wholesalers do not have a good selection of miniature roses, which happen to be my favorite class. In our care is a garden that contains several varieties that are fairly difficult for me to get a hold of. There are three I am particularly interested in - Loving Touch (PP5835), Red Beauty (PP5115), and Gingerbread Man (PP9420). Of those three, Loving Touch and Red Beauty have patent dates from the 1980's and from what I've read it would be legal for me to propagate from these bushes and sell the plants. My question: is that correct? As a commercial entity I do not want to venture into murky legal waters based on my own research (I want to be ethically clear too, regardless of potential lawsuits I understand the importance of plant patents and how difficult/expensive it is to breed these plants). I also know that the name Loving Touch is trademarked, so if it is legal to propagate I would have to sell it under a different name. Red Beauty is both out of patent and not trademarked so I think it is legal to sell under that name.

Now onto the less important but more confusing issue. According to this USPTO webpage ( http://www.uspto.gov/patents/resources/types/plant_patents.jsp#heading-1 ) "The grant, which lasts for 20 years from the date of filing the application, protects the inventor's right to exclude others from asexually reproducing, selling, or using the plant so reproduced." This is in opposition to Section 83(b) of the Plant Variety Protection Act, which states "the term of plant variety protection shall expire 20 years from the date of issue of the certificate in the United States". Is protection from a patent and protection from the PVPA two different things? How would I find out if the variety is protected under one or the other?

The specific wording of the start of the 20 years is of concern to me because Gingerbread Man is coming off of patent soon. The application was submitted 1/3/1995. The patent was granted 1/9/1996. If the 20 years begins at the earlier date then I would potentially be able to propagate cuttings after this coming January 3rd. If it is the later date then I will have to wait another year. The name is a registered trademark so once again I would not sell it under that name.

Long story short: Can I legally sell propagated plants from varieties that have an EXPIRED plant patent? No one seems to address that angle of patent law head-on. Then the follow-up question is: if not then can I at least propagate some for myself? I really do love these varieties.

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