If you are like me I didn't know the answer to that question a couple years ago. It's a strange concept when you stop to think about it. How can you claim sole proprietorship for something that is alive? It seems strange but when you consider it more it can begin to make sense.
First of all what exactly is a plant patent? When you go to the nursery to purchase your plant or view it online you should see two letters and a number near the plant name. The "PP" you see stands for plant patent and the number is the patent number that the plant is listed under. You may have never noticed it or just thought that was some kind of store coding. The plant patent protects the plant from vegetative (asexual) reproduction for a period of twenty years. This includes cuttings, layering, tissue cultures, corms, rhizomes, bulbs, grafting, budding, runners, and everyones favorite nucellar embryos. I have no clue what that last one was, I'll have to look it up! Simply put: you can legally reproduce any patented (or non-patented) plant from seed since the plant will not be 100% like the original plant.
What's the point to a plant patent? The patent is important in couple ways. At first glance you might think that it is a purely selfish way for a grower to monopolize the market on a particular variety. While it's true that these growers might gain a profit from those patented plants, it's not a bad thing. Suppose a grower releases a new plant one year without a patent, the following year another grower takes that same plant and markets it everywhere which would hurt the original grower. The original grower could be left nearly empty handed after spending years of work trying to foster a new plant. Now if the original grower had a patent on that plant he would maintain sales rights for it for 20 years. This insures that he/she has time to produce the plant in sufficient quantities to make a profit, or can sell the right to another party. The patent aids the grower in establishing the variety which helps the grower to be successful. The patents encourage the creation of new varieties throughout the horticultural world.
I won't list all of the guidelines here for plant patents, you can look them up at the site below, but it must be capable of stable asexual reproduction. Which means it's offspring must be just like the mother plant. It also cannot have been sold for more than one year before an application is submitted to the patent office.
So what does this mean for the ordinary, average, everyday, run of the mill home gardener? It means that the horticultural industry is being protected by the government and that new varieties of plants will continue to be produced. It also means that if a plant has a patent on it you shouldn't reproduce it. Most likely if you took cuttings of something with a patent on it and did not attempt to sell it no one would notice. If you do ever intend to sell something that has a patent on it make sure you get the patent holder's permission but if it has been 20 years or more it is fair game for all interested parties. Here's an example in my garden I have two types of Russian sage (Perovskia atriplicifolia). One is 'Longin' Russian Sage which does not have a patent and the other is 'Little Spire' which does. I haven't really noticed a difference in the two varieties, but someone with a better trained eye than I have must have. I can take cuttings from the Longin Russian Sage at any time but not the Little Spire (PP11643). For it I'll have to wait until 2018 to make cuttings since the patent was granted in 1998. The good news is that Russian sage seeds very readily and for me that will be good enough! Who knows a new hybrid might be found in my own garden. There are places you can go look up the patents like Patent Genius or just go to the U.S. Patent Database. All you need is the patent number, the patent holder, inventor, or the date to find what you seek.
I hope this post has been informative and easy to read. It's a complicated subject and I didn't even get into the trademark issues. I'll save that one for another time. As always please leave a comment if you have something to add or if you have a question!
For more information:
United States Patent and Trademark Office
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How to Propagate Plants for Your Landscape
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Tuesday, March 25, 2008
What in the World are Plant Patents?
Dave is the author of Growing The Home Garden and runs a small nursery business growing vegetables and herbs for local customers in Spring Hill, TN. (Blue Shed Gardens or FB page). He has written for gardening publications, Troy-Bilt and Lowe's and is available for edible garden consulting. Dave gardens organically and when he isn't writing, collecting seeds, or propagating plants he's parenting his 4 children as a stay at home dad.