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
For Posts on Plant Propagation:
How to Propagate Plants for Your Landscape
very easy to read. stuff most of us already know but don’t want to talk about. but it has to be said. they have to make money somehow for all their work.
Thank you for this post. I didn’t really know how it all worked. I can now same I am educated in the facts.
This is something that has bothered me for a long time. What do I do with plants that increase like crazy?
For instance, yesterday I had to divide Oenothera ‘Cold Crick’. It was so large, I got 11 good sized pieces from it. In the past if I didn’t divide it, it would die out suddenly. Now I’ve got 11 plants (really more since I have several more clumps that need dividing).
I was under the impression that I couldn’t SELL this plant, not that I couldn’t GROW this plant. Hmmm, now I have to do some more research.
Tina,
You said it, they do have to make money somehow. I think the main reason patents exist are to foster creative ideas, which usually leads to good things.
Jane Marie,
You’re welcome!
Melanie,
I don’t think anyone will care if you divide plants that need divided, give it to friends and family, or put it in other places in the yard. I think they are just concerned over competition impeding progress. I doubt anyone is going to come to your home garden and check for patented plants. For me if a plant needs divided, I’ll divide it. Just don’t sell the patented ones, and you’ll be fine!
I didn’t know exactly how this works, but it makes sense. It prevents others from making a profit off the hard work of others. Not much different than copyright, really. Very informative article.
A really good post, Dave, and I think a lot people are confused by plant patents. Also, a lot of the gardening world wishes they didn’t exist, but I know some hybridizers and plant breeders. They work for years to select a really good plant.~~Dee
This is a really, REALLy excellent post, Dave. I hear people growling about plant patents and pricy plants, and I wonder how they think plant breeding will continue if the breeders DON’T make some money from their labours? I did talk to one plant person about dividing PP plants, and as you observe, it’s okay to divide and share for free–just not sell the plants. I suppose if you divided a bunch and gave them to a church or humane society sale or something like that, it would be fine. I’d just label the plant as Perovskia or Oenothera or whatever, and not put down the cultivar, in that case.
I think plant patents are a good thing for the reasons you’ve noted. What irks the heck out of me are the phony trademark names sometimes attached to plants. I’ve adopted Tony Avent’s philosophy & use the botanical name instead. (‘Monlo’ instead of ‘Diabolo’ Physocarpus)
Nancy,
Copyright is a good analogy. When I was teaching music that issue popped up daily, what can you copy and for what use? It’s there to protect the author or in this case breeder and encourage advancements.
Dee,
Thanks! You’re right many people wish they didn’t exist but when you look at the good the patents do it’s easier to accept. Still it really shouldn’t effect the normal home gardener too much.
Jodi,
Thanks for the compliments on the post. A lot of hard work can go into hybridizing and finding those new varieties. Then there is a great deal of time spent producing enough to begin distribution. When you stop to realize how much work actually goes into what they do you gain a greater appreciation for what you see at the nursery.
Mr. McGregor’s Daughter,
Trademarks are just one way people have of making their plant unique without a patent. They seem like the wrong way to do things to me. Trademarked plants can be reproduced for sale as long as they are not sold with the Trademark name, which makes trademarking plants about worthless. I agree, using the botanical name is a good solution for the confusion!
Good post. I was really surprised a couple of years back when I saw on a plant label that I wasn’t allowed to propagate it – though in the event it didn’t live long enough anyway 🙁
but i agree with Jodi and the others that it’s fair. As a textbook writer I object to people photocopying my books and depriving me of royalties, so why shouldn’t it be the same for plant growers?
Thanks Dave, I didn’t know that about patents. 20 yrs. would protect the one holding the patent. Good info.
Sue,
Thank you for coming by and commenting! Many people put in very hard work to make things like textbooks and plants, it’s only fair that they get to profit from it somehow. They do have to make a living!
Lola,
I agree 20 years ought to give the developers plenty of time to market the plant and move on to another. It’s a way of creating sustainability in the horticultural industry.
hi dave, nice article :), got me to look for more information on plant patents .unfortunately , I got to see the dark side too .Right now it appears plant patents are taking over everything that doesn't have novelty .According to one observation most patents that are being applied for right now are for varieties that have been common in nature for over a century or have been developed by indigenous farmers. I feel plant patents need comprehensive revising, since they should strictly encompass those that have required special breeding techniques only .
Sarah Jane,
You may be right about plant patents needing to be looked at for some possible revision. They serve a good purpose, in that they protect plant developers economically so they can develop new things. It does seem that almost everything coming out has its own patent that puts things out of reach for most would be propagators. I agree that patents should be restricted to those things that were developed and not just happened over time.
just my opinion; however, I feel a patent is just a way for a rich man to take a poor mans money straight out of their hands. They more protect larger corporate america. Anyone ever try to get something patented, IT COSTS SOME MONEY!!!! I don't think it's just plant patents that needs revised, the whole patent system does, to allow everyone to contribute to the system. Everyone has had stellar ideas from one time or another who say I wish I could patent that and the biggest thing that usually holds us back is the concept of expense and time. If they lowered the cost of patents I feel We really would see a larger development and technology growth and honestly would even lower the unemployment rate by producing more products. Thats just my rant and rave, love the concept of something to protect our products but hate the concept that it's unreachable for the less fortunate. If it's meant to protect our ideas, make it cover everyones idea,s and not just the man who has 8000 dollars cash in his pocket to hand out.