Patented plants, plants with registered trademarks.
What does all of that mean? What is a person/backyard grower to do?
Without a doubt this is an extremely confusing and an intimidating subject and as far as some are concerned the more intimidating the better.
I need your help with this and I will explain.
Lately, I have been talking a lot about beautiful plants that are being kicked to the curb by our industry and I will continue talking about this for a long time to come.
I brought this up in an Email a couple of weeks ago about Big Business trying to control what we are doing in our backyards and most of you were on board, a few accused me of being some “Crazed Tea Party Maniac”.
Nothing could be further than the truth. But I believe that what is right is right and what Mother Nature gave us is what Mother Nature gave us.
Mother Nature did not say; “I think I will create this beautiful plant and drop it on the property of the XYZ Corporation so they can lock it down and control it forever.
Sorry. That’s what I believe to be true about plants and nature.
Now if the XYZ Corporation hires a team of plant scientists to work in a lab/greenhouse environment doing cross-pollinating and whatever else they do to deliberately and intentionally create a new and beautiful plant that the world has never seen before, then by George that is your plant and you are more than entitled to patent it, name it and protect the name of the plant.
That’s why we have a patent system in the first place.
But in the nursery industry, the plant patent system is being treated very differently than it is in other industries and it’s because these growers (farmers really) are intimidated by the process.
At least those are my thoughts.
This is not Legal Advice. This is Opinion, and My Opinion at that.
I am not a lawyer so please don’t accept this as legal advice.
I’m a Dirt Farmer in Bib Overalls. Those are my qualifications to talk about this. So take my advice for what it’s worth.
The difference between a plant patent and a plant with a name that is a registered trademark.
There very much is a difference between a plant that has been patented and plant that only carries a name that has been granted a trademark on the name of the plant.
To the best of my understanding, a trademark protects the name of the plant, not the plant itself.
A plant patent protects the plant and in most cases protects the plant against asexual reproduction.
I also think it’s safe to say that all patented plants probably have names that are registered trademarks as well.
As I understand it, a plant patent is good for 20 years from the date of application and it does take some time for a plant patent to be issued, up to two years.
A trademarked name is pretty much good forever and I truly don’t understand it completely.
I’m not sure if it has to be renewed after so many years or not, but as far as I know, the trademarked name is good for a very long time whereas the plant patent is 20 years from date of application which means that as a plant propagator you need to know two things for sure.
1. You cannot propagate a patented plant until the patent expires. Not even for yourself at home.
2. The trademarked name is off limits pretty much forever unless you are buying plants and the royalty has been paid.
Royalties.
All plants that are under patent can only be propagated by growers who have been granted a license to propagate that specific plant.
This license is an agreement between the patent or trademark holder and the person that obtains the license.
For the most part, the agreement states that for each plant propagated and sold the licensee will collect a royalty for each plant sold and also require buyers to buy plant tags that display the patent and trademark information so the end user who gets those plants knows the plants are protected.
Paying royalties is pretty painless and easy and for most plants, they are one dollar or less.
I only have a few patented plants in my nursery because I don’t like to buy things that I cannot propagate.
I get a much higher return on investment when I buy 500 plants that I can take cuttings from, then sell the original plants.
If I do this correctly I never have to buy that plant again. I can just keep taking cuttings from the plants that I grew from cuttings.
That’s the beauty of this business. And to be quite frank, that’s why you see so many patented plants today.
The big companies want us growers to have to buy our stock plants each year. That generates millions in royalties.
That’s why I am such an advocate of keeping the plants that are in the public domain alive and well and in the market place.
Royalties are easy, getting a license to grow patented plants not so easy.
Becoming licensed to grow a patented plant usually requires a fee of one thousand dollars or more and in many cases they expect you to produce 10,000 or more of that particular plant each year.
It’s just not something that makes sense for the smaller growers.
Other reasons to forget about propagating patented plants.
One of my all-time favorite plants, I have many favorite plants, but one of them is the Lavender Twist Redbud Tree. Absolutely strikingly beautiful tree!
Developed and patented by a friend of mine and longtime nurseryman here in Madison, Ohio, Tim Brotzman.
I grow the Lavender Twist here in my nursery in Perry, Ohio. This is a patented plant and the name is trademarked.
I actually buy small trees from a grower in Oregon, I pay the royalty at the time of purchase and I also have to buy the tags to put on the trees.
None of that matters because this is a tree that I would never propagate myself even if I was allowed to for two reasons.
1. Tim learned early on that propagating the Lavender Twist here in cold Ohio was challenging to say the least. He was able to do it when he was in process of testing and developing the plant, but his results were less than spectacular. In the south where it’s warmer propagation of this plant is much easier. So even Tim, the holder of the patent, buys young trees from one of his licensees and grows them on in his nursery.
So with that said, it’s important to understand that nurseries do not propagate every plant they sell. In many cases they prefer to buy certain items from those who specialize in that kind of propagation. Many nurseries will not do any of their own budding or grafting. They’d prefer to buy plants already budded or grafted and actually grown for one, two or three years before they get them. That cuts their turn around time on growing and selling the plant by as much as 70%.
Where do new plants come from? Can I patent a plant and collect royalties?
For the most part, there are two ways that new plants are invented or discovered.
1. Chance seedlings. Many of the most beautiful plants that we love and enjoy today are the result of a “chance seedling”. A grower/nurseryman routinely sows tens of thousands of seedlings each year. Seedlings do not come true to the parent plant so there are always variations in a batch of seedlings.
Colorado Blue Spruce are routinely grown from seed. Millions of them each year are produced from seed. If you look across a bed of Blue Spruce seedlings you will see a variation of colors ranging from green to blue, and if you are really, really lucky a really bright blue one or two. Chances are you’ll see mostly green and some blue, none that are bright, bright blue.
Over the years a few growers, very, very few, have sown Blue Spruce seed and in one out of approximately 80,000 seeds sown, one time in their life, one of those seedlings just stands out among the rest just beaming with the brightest, bluest color you can imagine on an evergreen plant. That is the one in a million seedling! That is a new plant that has to be preserved, cared for, nurtured and eventually re-produced by means of Asexual Reproduction. Seeds from that beautiful tree will not produce a clone of that tree. The only way to get a true clone of any plant is via asexual reproduction, not seeds. That means, cuttings, budding, grafting or tissue culture.
That’s what we mean when we say chance seedlings. And the big question, the multimillion dollar question, is this; “Who is really responsible for producing that plant, and who does it truly belong to?
In reality, it’s a gift from nature. But . . . if it weren’t for the astute nurseryman who is dedicated to his craft it is entirely possible that the chance seedling would have never gotten the chance to be a tree in the first place, and even if it did happen in a completely natural setting who would know about this beautiful tree? Therefore, the common understanding is that the nurseryman is rewarded for doing this fine work and has the right to patent that tree as a means of compensation for bringing it to the world, and more importantly cloning and bringing it to market.
And that’s why we have a United States Patent System as do many other countries in the world. To give inventors incentive to work hard at bring us new inventions and in our world, new plants.
2. The second way that new plants are introduced to the world is via direct effort to cross pollinate different plants and do this over and over and over in a controlled environment until the desired result is achieved. And to be perfectly blunt, I have little to no first hand knowledge about exactly how this is done, how it works etc. But in this case, when deliberate effort is exerted and great expenses incurred to create new plants in a controlled environment, of course the “inventor” of said new plant should be entitled to patent protection for 20 years as the law allows.
Can I patent a chance seedling that I find growing in the woods?
To the best of my knowledge you cannot.
If I’ve comprehended this correctly in order for a plant to be eligible for a plant patented it has to be developed in a cultivated setting, as in a nursery.
In other words, if the nurseryman who sows 80,000 seeds in two or three large seedbeds in an effort to produce Blue Spruce Seedlings, that would be considered a cultivated environment.
A truly unique plant developed in such a setting could be considered for a plant patent.
But if you are strolling through the woods in May and see a dogwood tree in full bloom, loaded with brilliant blue flowers, which does not currently exist that I know of, I don’t think it would be eligible for a patent because it was produced completely by chance in the wild, by nature.
You could begin propagating it, but if you were to apply for a patent and were completely honest about how it came to be, I don’t think a patent would be issued.
But then again, I don’t honestly know, that’s just how I interpreted what I read in my research on this subject.
But . . . you could give it a sexy name and trademark that name.
Plants with Trademarked Names that were never patented.
Huh? How can that be? Is that right, to collect a royalty on a plant that truly was a gift from nature?
The plant was a gift from nature, but if somebody doesn’t put forth a great deal of effort in propagating and producing thousands of said plant then going to the top of the mountain (buying tens of thousands of dollars in advertising space in trade journals and gardening magazines) and screaming to the world about this new and exciting dogwood with blue flowers, that one lone tree will never be seen by anybody except the one person who happened upon it in the woods.
Therefore, the person or big company, that brings this non-patented plant to market, needs some form of guarantee of income in order to put forth that effort and make the investment in letting the world know about this plant.
And they have a big job ahead of them because the plant is not patented, therefore it can be grown by others, so they have to work hard and fast to turn that sexy name into a brand. That’s no easy task and it truly requires deep pockets.
Make any sense?
White Fountain Weeping Cherry or Snow Fountains® Weeping Cherry?
Throughout this post I’ve been teasing you with photos of White Weeping Cherry trees. Look at those last two photos. Is that not an awesome tree with that twisted and contorted stem?
So which is it? Are these White Fountain or Snow Fountains® Weeping Cherry?
I don’t know. White Fountain Weeping Cherry has been around for years and I don’t know where or how the plant originated.
I think it was introduced by Wayside Gardens but I don’t know for sure. To the best of my knowledge, it was never patented.
But as I understand it another grower decided this plant was worthy of investment and probably under marketed so the name Snow Fountains® Weeping Cherry was registered as a trademarked name and a great deal of effort and expense went into making this plant popular and in demand across the United States and possibly around the world.
Snow Fountains® truly became a brand and household name around the industry.
You can easily find this plant sold everywhere as Snow Fountains® Weeping Cherry. There are some growers who still grow it under the name of White Fountain, but not nearly as many.
The interesting thing about White Fountain Weeping Cherry is that it can be rooted from cuttings. It’s a bit tricky, but it can be done and I do them With this System like I do all of my cuttings.
This is a weeping tree so like most weeping trees grown on their own roots (not grafted or budded) the only thing they know how to do is weep so if you don’t train them to grow upright and stake them, they will pretty much just grow across the top of the ground, which is interesting if you let them hang over a brick wall.
Looking at the last two photos that I posted on this page that tree was grown and trained by a friend of mine in his nursery with that crazy crooked stem.
He trains them that way intentionally. So I’m driving down the road and see the tree in somebody’s yard. I stop and ask if I can take pictures and use them in this post, that’s how I learned who originally trained the tree with the crazy crooked stem.
The Colored Pot Debacle.
This is what puts patented plants out of reach for the small grower.
It started out that if you wanted to grow and sell a patented plant you could just buy liners (a small plant, larger and older than a rooted cutting) or rooted cuttings, pay the royalty at the time of purchase, then grow out the plant and sell it at a profit.
You can’t propagate from those plants but you can grow and resell them at a nice profit as I do with the Lavender Twist Redbud Trees.
Then the holders of these patents decided that they really wanted to drive home their brand names so they now require you to not only buy the plants, pay the royalty on each plant, but they also make you, at that time, buy the branded pots from them.
This is a game changer for small growers.
Small growers cannot tie up that much money in a plant that they can’t sell for two or three years. This is really making it difficult for a small grower to offer these branded plants in their line up.
Trust me on this, a lot of growers, even pretty big growers, are not in love with this “colored pot debacle”. But there’s another side of this as far as I’m concerned.
For years and years, we saw new patented plant introductions, a few each year. Truly unique, truly interesting plants that were worthy of a patent.
Then all of a sudden, just about every plant being offered by certain big growers who supply the industry with liners are either patented or carry a registered trademark.
New introductions of plants that have been around for years and years. All of sudden the variety that we’ve been growing and selling for years is no good? We now have to grow and sell the branded plant in the colored pot?
I say we don’t.
I say we have an obligation as small growers to keep producing the older varieties that have been around for years and sell them at prices that gardeners are delighted to pay.
I teach my backyard growers a system of growing and selling plants that allow us to routinely sell plants for as little as $5.97 each and still make an incredible profit per plant. We can’t do this with branded plants in colored pots.
I say we let the big kids on the block have the colored pot business. They can grow them, pay the fees, buy the “colored” pots and the tags, then push them onto the retail market at crazy high prices.
We, as small growers, will unearth and revive all of these beautiful plants that are being kicked to the curb!
In many cases these older varieties are superior, but we are being lead to believe differently. Don’t buy it. These older varieties served the industry well until all of a sudden somebody got the idea that plants had to be sold under a brand name.
Fight back my friends, this is a battle worth fighting for!
Last but not least, something about the United States Patent System that I did not know.
I was always under the impression that when a new product, say a prescription drug, was patented and introduced to the market that the “so called recipe” to make this drug was top secret stuff and that other companies, competing companies, would reverse engineer that drug in an effort to find out it’s formula so when the patent expires they can rush to market with a generic version of the original.
But in talking with a patent attorney he told me that’s not the case at all. According to him, as I understood it, remember, I’m just a dirt farmer in bib overalls, he said that when applying for the patent the company has to disclose the recipe (so called secret formula) and in return they are granted a patent that gives them 17 to 20 years (I think drugs are different than plants) to crank out their new release like crazy, make as much profit as they can and when the patent expires others are encouraged to start producing generic versions.
In other words, they are pretty much telling the world in advance how to make the knock off versions in exchange for X number of years of patent protection so they can recoup the investment they have in the product to date and earn a nice profit before the flood gates are opened.
So how about Plant Patents?
As I understand it, this is not legal advice, the plant patent is good for 20 years from the date of application.
Once the patent expires it is my understanding that the plant itself is no longer protected but the trademarked name is.
Don’t ask me what you are allowed to do or not allowed to do. I’ve presented this information as clearly as I know how but I am not going to give you permission to do grow anything. Only you can decide that.
You can search the plant patent database and I will put a link here as soon as I find it. But it’s not an easy site to use therefore I never use it because it often doesn’t return what I’m looking for, even though I know it’s there.
I’m sure it’s “operator error”. What I do is buy plants from large growers that I know and trust. They are really good about disclosing what is patented and what is not and I will often use google to check that information against other larger growers that I know and trust.
On this site, you will find a list of thousands of plants that are patented and when the patent was issued as well as a ton of other information about patents in general.
I have presented this information as clearly as I understand it. I know there are experts out there who know more about this process than I do and I welcome their comments here.
We Need Your Help in Saving and Reeving the Beautiful Plants that have Been Kicked to the Curb by our Industry! It’s the right thing to do.
You, yes you, can make a difference in your town. Get my Backyard Growing System today.
Questions or comments? Post’em below!
Greetings Mike, I have been following you for over 3 decades, and finally decided to jump on the lifetime joining opportunity! I want to start with cuttings from my nursery purchased seedless Concord grapes. They have been growing over a pagoda for years. It’s looks beautiful but was not smart for harvesting- unless you are a bird. I need to cut them and wonder how I can profit from this growing mistake. Can I sell the cuttings? Do I need to root them? What length should I cut to? Any advice is welcome! Thanks for being you!
Marie,
Grape cuttings are typically rooted in the winter as hardwood cuttings. You can sell both rooted grape plants and unrooted grape cuttings. For more details ask more inside the business center on the discussion board. If you signed up you should have received a login name and password from Duston and Lorelei. https://backyardgrowers.com/wp-login.php You can contact them if you don’t have it. [email protected]
How does one determine the exact variety of a plant in their yard? I split & potted some lily of the Nile we had growing near our pond. We also have some amaryllis but not sure they’ve done much reproducing (we’ve only lived in this house a couple years). Of the Amaryllis, one bundle is typical red, but the other I suspect is perhaps a patented or trademark named variety because I’d never seen it before – creamy white with pale pink stripes.
We also have a ton of rhododendrons spreading around the yard. We’ve a pretty shady yard so I don’t see blooms often, but the ones I have seen were deep pink. Also a single camellia with beautiful pink-red blooms this time of year (I’m 9a.)
How would anyone wanting to dive into propagation & resell figure out if anything on the property they purchased is a patented plant or named variety?
EJ,
The shot answer is that you cannot find out what you have growing in your yard with any degree of certainty. When propagating you have to start with properly labeled plants. Frustrating I know, but that’s just how it is. Are the cuttings that you have to stick “Rant Compliant”.
Honestly, this is the most important thing I can teach new members.
https://mikesbackyardnursery.com/rant/
I am in zone 5 ( actually 4) We are on the Arid Eastern Plains of Colorado where the wind blows without interruption and we don’t get much rain. We would like to help you grow and sell plants, but it is very time consuming to look up each plant to see if we have a starving chance it will survive here. Would it be possible to send us a list of plants for our area? We are aware that our potential customers would live in the towns around us, and would likely survive in their backyards, but it has to start life in our climate.
Thank you for your help!!
DeAnna,
The list you are asking for is at your local garden centers. Whatever they are selling, that’s what you should be growing. You can study this to death or you can dive in and get started. We have people all over the country doing this. http://backyardgrowers.com/join
Hi Mike,
I am trying to get started on a backyard very small scale plant nursery. I am having a hard time finding out if a plant is patented. You say to look on the tag and some of them say not to propagate and some just say it is unlawful to propagate patented plants but have no actual number. Then there are the ones that dont say anything about a patent. I looked at your list of plants that can be propagated and you have hydrangeas. All of the hydrangea that I have purchased to put in my yard say they are patented. This is so confusing. Another question is can you propagate from plants that I grow from seeds that I purchased at the store?
Penny,
If you are serious about starting a small nursery, invest $7 and test drive our members area for 30 days. http://backyardgrowers.com/join You can get all these and a million more questions answered. Plus, you can buy non patented hydrangeas for a couple bucks a piece. Many of the hydranges that I now do hundreds of I original bought from our members scattered around the country. I just purchased 100 Ruby Slippers Oak Leaf Hydrangea for $2.90 each from a member. In the members area you can simple tell us what hydrangeas you have and the members will immediately let you know whether or not you are free to propagate them. If you bought hydrangeas at a garden center there’s a good chance that they are patented.
I bought a blue hydrangeas from Walmart. All the blooms were dripping. I asked if I could buy it for a reduced price. She left with the plant and came back with it reduced to $6.95. Can I take cuttings?
Nancy,
Do you have the tag? Is the plant patented? What variety is it?
Mike, Speaking of Hydrangeas. I don’t want to propagate y white Hydrangeas, but my recently planted plants are droopy. I assumed it was the hot weather and we have kept them watered in the early mng or in the evening. They had large flower heads when they were planted. The leaves are okay, several plants still droop. Is it that the flowers are just too heavy for the new plants? If so, should I cut them back for the fall. Some of the flowers are now spent.
Cindy, remove the flowers when they start making the plant look bad, then cut back in the fall and they’ll be beautiful next year.
Hi Penny, Any plant that is patented from an ethical grower will have a notice that it is patented on the tag. Some growers take unpatented or those with expired patenta and sell them under a trademarked name , so even though it is legal to propigate , it is illegal to sell it under the trademarked name There is a big outfit M…. that often does this (they make up a special name for a common plant and register it as their tradeemark so no one else can sell it under this name , even though it is leaga to propigate and sell it under another name .. Some plants state pattent applied for (which may or may not be true )
A lot of plants have the name of nursery on the pot , and you can contact the nursery and ask about the patent status of a particular plant if you want to be sure . Also you can buy rooted cuttings of unpatented plants from the backyard growers board. Now each plant has a scientific and a common name . The scientific name has a genus and species followed by any special variety name .
For instance , there is a plant called by common name Arabian tea jasmine , And there are maybe 20 different varieties . The scientific name is Jasmine Sambac (genus and species ) A paticular one is called Jasmine sambac maid of Orleans , and you need all three names to specify in order to know if it is patented .
Hi MIke! New new new here, so much information. I’ve been all over the site and may be on information overload, and have a few questions, but I’ll only ask 1 for the sake of hurry up and ask lol.. I have an avocado I purchased and if I understand you…I can only root from seed if I want to sell any plant from this avocado tree? Thanks for your time in answering,
Lucille,
No, as long at the plant is not patented you can grow any plant from cuttings. Almost any, not all plants do well from cuttings but most do. But I have no experience with Avocado. See this, https://mikesbackyardnursery.com/2015/01/easy-summertime-plant-propagation-techniques-can-home/
I have a weeping cherry tree that shot a sprout up from the root. I chopped it off and pulled and it came up with roots on it. I stuck it in the ground and it is now budding out, the only thing is it has two leaders. It probably will be the mother tree or whatever, but I would like to see how it turns out. Any suggestions on what to do with the double leaders? Thanks
Pat,
Simply remove the one that is least likely to make a good leader.
Mike,
Are there any of your growers in the Cincinnati area?
If so can you give me some info on them. I would like to visit them.
Jim,
I’m sure we have folks down that way but I can’t offer that info here.
I have a mountain ash tree that I’d like to propagate. I looked in the patents and only saw 1 patent back in 1976. The tree I have was planted in 1968, therefore, I don’t see a problem propagating it. Do you?
Terry,
I don’t see a problem as long as the name is not trademarked. Trademarks can last forever as long as they are maintained.
How do we find out who has the patent?
Kim,
It’s probably on the tag, but you will not get permission to propagate it unless it happens to be a really, really small grower and that’s not usually the case.
Hi Mike,
I am grateful to you for taking time to e-mail me on this so very important subject about “Growing and selling patented plants”.
You wrote this in one of your comments: “The best that we can do is protect and keep propagating the old, beautiful varieties that have been in the public domain for years.” This is my believe, as well, so I’m in. I am committed to do just that. Glad I joined your Backyard Growers Business Center.
Wow, Mike! Really enjoying these posts and finding them very helpful as well as inspiring. Thank you!
Guess i dont quite understand how your business works. I wrote you awhile back about starting a subscription for people who would like to buy only. I dont have the ability to grow and make a business out of it. But to be able to just buy plants from backyard growers is too expensive for me. Its not even feasable. Is there something i am missing here where people can buy only for a lower price than the ones who grow? How you get what im trying to explain here. Thanks, sue b
Sue,
I understand your question but our members area, http://backyardgrowers.com/join, is for wholesale buyers, people who are interested in starting a business or just want to be members. Anybody can join and the test drive is only $7.00. That’s for 30 days, lots of plants offered for sale in any given 30 day window of time.
Thank you. I guess i will just try that way. Appreciate your response… Sue
Hi,
I’m new here. Can you name a few of the non patent plants you grow?
Cedilia, Welcome aboard!
21 Plants that are Easy to Grow and Sell Like Crazy
The following 21 plants are really easy to grow and they sell like hot cakes. They always have been really good sellers and they always will be really good sellers. And this list is just the tip of the iceberg when it comes to plants that you can grow and sell that people want to buy.
1. Forsythia
2. Red Weigela
3. Varigated Weigela
4. Pink Flowering Weigela
5. Red Twig Dogwood
6. Fragrant Viburnums
7. All Flowering Viburnums
8. Potentilla
9. Dappled Willow
10. Pussy Willow
11. Daylillies
12. Hosta
13. Huchera
14. All kinds of Perennials
15. Armeria
16. Boxwood
17. Japanese Hollies
18. English Hollies
19. Rhododendrons
20. PJM Dwarf Rhododendron
21. Hydrangeas
22. Rose of Sharon
23. Dwarf Alberta Spruce
24. White Dogwood trees
25. Chinese Dogwoods
26. Blue Rug Juniper
27. Gold Flame Spirea
28. Gold Mound Spirea
29. Ornamental Grasses of all kinds
30. Crimson Pygmy Barberry
31. Rosy Glow Barberry
Okay, that’s 31 and I could go on forever.
Here are some plants for warmer zones, 8,9, and 10
Fragrant Tea Olive
Gardenia,
Camellia,
Azalea,
Jasmines
Palm trees
Tropical Hibiscus
Burgundy Chinese Fringe Flower
Bogainvilla
Owari & Hamlin Oranges
Satsuma
Kumquat
Azalea (out the wazoo down here)
Crepe Myrtle (ditto)
Lilies
Camelias
amaryllis
hybrids such as Blossom Peacock and Papillo
Japanese Pieris
Satsuma’s
Star gazer lilies
Crape Myrtles of all kinds
Gardenia varieties-evergreen
Azalea varieties-evergreen & deciduous(native)
Camellia varieties-evergreen
Fragrant Tea Olive-evergreen
Nandina varieties-evergreen
Loropetalum/Chinese fringe flowers
Chase Tree
Abelia -so many new exciting varieties -good for zones 6-10!
Viburnums
Daphne
Cleyera-evergreen
Burning Bush/ Euonymus varieties…
Spirea -especially Bridalwreath, Little Princess, Goldmound…
Butterfly Bushes
Jasmines (vines-Carolina, Confederate)
Confederate Rose
Lady Banks Rose
Anise (check out Florida Sunshine)
Holly-Soft Touch/Sky Pencil/Youpon/Burfordii….
Crape Myrtles
Japanese Magnolias(Saucer, Betty, Royal Star…)
Southern Magnolias
Dogwoods
Red Buds
Japanese Maples
Evergreen hedge trees/shrubs
Leyland Cypress
Murray/Arborvitae
Japanese Cedar(cryptomeria)
false cypress(Chamaecyparis…)
Junipers-Blue Rug, Sargentii, Blue Point,…
Trees:
Chinense Pistache
Fruitless Mulberry
Weeping Willow
Live oak
Red oak
Catalpa
Vitex (or Chaste Tree)
Desert Willow
Shrub:
Nellie R Stevens
Wax Myrtle
Red Tip Photinia
Korean Boxwood
Radicans Gardenia
Loropetalum
Yaupon Holly
Perennials:
Salvias
Sedums
Butterfly Bush
Reeves Spiraea
Van Houtti Spiraea
Vines:
Honeysuckle (coral)
Crossvine
Star Jasmine
Thanks, Mike, for posting this interesting article that helps cut through the confusion around plant patents and trademarked names.
Two things I would like to add:
– A number of the plants in the list you provided of easy to sell plants also have varieties or cultivars that are patented and/or sold under trademarked names.
So even with these kinds of plants, people need to do the research to make sure they are not propagating or selling a patented plant. Or using a trademarked ‘brand’ name.
– The patenting of life or life-forms was originally against the law.
The reasons should be obvious to all.
In the 1930s this prohibition against owning and patenting life was relaxed to allow people to patent ornamental plants. Note this does not extend to the ownership of individual plants, but to the life-from itself – in this case, ‘new’ and supposedly unique enough varieties of plants.
Later food and feed plants were added.
Now there are also patents on GMO animals (including salmon).
The ‘biotech’ corporations (mostly all chemical companies) originally developed GMO plants like corn and soy to withstand applications of their chemical weed-killers, like RoundUp.
Then they began to buy out smaller seed companies, removing many varieties and cultivars from availability. This is one reason we do not use RoundUp, or similar products, EVER.
Another reason is that weed killers are toxic synthetic chemicals that do not occur in nature. Round-Up is 125 times more toxic than the ‘active’ ingredient, glyphosate’ by itself:
https://articles.mercola.com/sites/articles/archive/2016/05/31/roundup-inert-ingredients.aspx
Everyone can decide for themselves if they want to give their hard-earned money to corporations like that.
Thanks again, Mike, for spreading the info on how real people can grow and sell plants as small, independent businesses!
What types of boxwoods have a patent?
Chad,
I don’t know of any that do, but that doesn’t mean that there are not some newer ones that do. All you have to do is check the tag on the one you have, google that variety.
I saw some Green Velvet boxwoods and the tag said I couldnt propagate, so instead I bought some baby gem boxwoods. The tags on those did not have a patent number nor anything that said I couldnt propagate. However when I got home I search baby gem boxwood and it seems to have a patent. So I am not sure what to believe when it comes to the tagging.
Chad,
Green Velvet appears to be in the public domain. They often put those words on the tag but show no evidence of an active plant patent number. Baby Gem appears to be patented and the name is a registered trademark.
Thank you Mike…..new to the game so this helps….
Do you have a list of all the ones we can use?? I’m in Northeast Alabama.
Thank you for everything. All the awesome motivation, the information, and even all the wonderful community forming activities. I’m a big fan of your work.
Thanks Paul, I appreciate that.
Mike Here on the home-place there is a red crepe myrtle that has two or three limbs that have blooms that have a white border on them. I am going to try rooting some of them to see if it continues to have the two-toned blooms. I also have a trumpet lily that has any where from 15 to as many as 28 blooms per stalk . this year it has 28 buds & blooms. I am going to save the seed & plant them to see what happens in the next generations of them. wish me good luck
Marshall,
Good luck, isn’t this a blast?
Nothing wrong with a man in Bib Overalls, As I am the Official Bean Counter at our local library in the seed saving dept. I Just want to say thank you for all the information you share . And yes I pass your info along with your email. Many people have come on board here, we went from 26 ,to 194 in 1 year.
And we hope you will continue giving out all the info you do…P.S. My father wore Bibs all his life…they give a person “common sence” for when ya bend over ya don’t have to pull up your britches.
Thank you Connie and you are 100% right about the bibs.
Hi Mike, and everyone else Discovering plants, and dwarf type plants were brought up people can find these in mutations in tree’s called witches brooms
Also brought up was cross breeding plants If you have a grape that is only female any seed in it could be selected from a large amount of seeds grown out, and see if any stand out
(or if both male , and female flowers are on it , being a hermaphrodite
you have to remove the male stamens (parts) to prevent self fertilization)
About witches broom
https://en.wikipedia.org/wiki/Witch's_broom
or for a example look up The red bud tree
Metasequoia glyptostroboides ‘Schirrmann’s Nordlicht’
I am glad you brought up the fact of peoples rights getting patents
, but it is a complex subject I am against big corporations controlling things etc. It isn’t as easy to say is patenting right or wrong there is a lot involved.
IF people put a lot of effort into growing plants, and discovered one wouldn’t you want it being protected from a large nursery selling thousands , while all your hard work breeding it wen’t to someone else
There are a lot of people that put there life into cross breeding plants with pollen from other tree’s also people that discover plants growing multiple seeds with there land or looking in the wild for plants
(see Halvin – Pawpaw found by Tyler and Danae Halvin in Iowa)
breeders Peterson Pawpaws ,
Jerry Lehman breeder of pawpaw, and persimmon
Not to mention all the wild plants everyone passes by everyday not realizing what they are..
(NOTE I found a wild Plant with very thick dark leaves might be a tetraploid
(four sets of chromosomes, 2n = 4x)
unfortunately for America it was a Invasive Japanese Honeysuckle ,
(which I remove) — but those can be found , and used to breed with or cultivate.
That comment wasn’t directed at you Mike just other people
It isn’t as easy to say is patenting right or wrong there is a lot involved.
and like the above statement
I am glad you brought up the fact of peoples rights getting patents
Francis,
You make a lot of great points. Truly new, unique and beautiful introductions deserve to be patented. It takes years to bring a new plant to market.
is it legal to start a tree, bush or even a flower from seed and sell?
Deedra,
To the best of my knowledge most, if not all, plant patents only protect the plant against asexual reproduction. Seeds are a form of sexual reproduction. Why is that? Because all of these beautiful patented an non patented plants are cultivars or varieties of the original and the only way to reproduce the cultivar and get a plant that is identical to the parent plant is with a cutting, a bud, a graft or via tissue culture. Seeds typically produce the most generic form of the plant.
In example; if you collect seeds from a white dogwood you’ll get white dogwoods. If you collect seeds from a pink or red dogwood, you’ll get a white dogwood.
Mike, if I grew a seed from a patented plant, and I wanted to grow cuttings from my plant that I grew from the seed, would that be considered a violation of the patent? Or is me taking the cuttings from the plant I grew from the seed ok?
That was hard to explain so I apologize if it doesn’t make sense.
Brooklyn,
When you grow from seed you are not cloning the patented plant. Seedlings are unique and not identical to the parent plant therefore, to the best of my knowledge not protected by the patent. In farming, there are patented seeds, but not with ornamental crops that I know of.
The plants I have rooting in my sandbox are gardenia. hydrangea and azalea that have been growing in my yard for ten to fifteen years, so I don’t expect any patent problems. I do have a question about growing Poplar trees, I can produce tons of them, but I don’t know if there is a market for them. I was hoping to be allowed to connect with the Business Group, but I am your are not accepting new members now.
Thanks for all the information so far..
Nuella.
Nuella,
I think we accept new members again on August 1st, it should say on this page, http://backyardgrowers.com/join. The members area is the best place to get your questions answered. I suppose there is a market for poplar trees even though I don’t like them. People do buy them. The true problem is knowing the exact varieties of what you are growing, that’s really, really important. See this, For years and years and years this has been my rant;
http://freeplants.com/rant.htm
Hi Nuella,
I have many hybrid poplars growing on my property. I do know the 2 varieties that I take cuttings from, op-367 and dn-34. Really the only thing that mattered to me was
a. would it give me a lot of shade fast while the slower growing oaks and maples were growing to decent size
b. are they male trees because I do not want to deal with catkins and fuzz everywhere in the Spring.
I have a couple hundred here, in pots and planting beds that I will market to folks with hunting land who need trees. They are not a beautiful tree that is for sure. They serve a purpose. My 7″ cuttings planted in May of 2013 were 12′ in July 2015, that is significant growth under near perfect conditions.
… beauty’s in the eye of the beholde, I guess: nothing quite as happy as a light breeze sending light sparkling off their leaves against a bright blue sky … or anything that smells quite as lovely in late spring.
I read the otehr day that they are resistant to forest fires, in that the can live through a bush fire … that might make them valuable as seedlings, compared to some other species.
Hi Mike
I recently became a subscriber and enjoy your expertise and knowledge immensely. I have a Colorado Blue spruce shrub which is showing the blue new growth here in Virginia. When is the best time to propagate it? I grow flowers, vegetables, herbs, fig, grapes, apple and plum only for my rather small estate. I am uninterested is selling.
Any help with propagating the Blue Spruce will be greatly appreciated.
Esther,
Most blue spruce are grown from seed or grafted. But if this truly is a shrub try some cuttings around July first. https://mikesbackyardnursery.com/2015/01/easy-summertime-plant-propagation-techniques-can-home/
Well done! Your post finally brings balance to this hotly debated subject. The guy in the bib overalls kept his sense of reason. Bless you
We realize that this information cannot be used as legal advice, but it fills the need for a clear explanation (in common everyday English) of the subject of patented plants. My personal feeling is that those who developed this slant to the patent system use complexity as a tool of intimidation against growers and retailers..
You also hit on the most important thing small growers and plant buyers need to do to combat the craziness… Keep the old varieties alive, well and appreciated by showing where they are often superior to the new patented plants.
Like you, Mike, I feel that there IS a place for the patent process because of the need to recoup the expense involved. My only objection comes into play when large corporations demonstrate over-the-top greed with their unnecessary extra expensive demands… primarily, the pots. I can understand the tags, but the pots are over-the-top and only demonstrate greed. Voting with our wallets by boycotting this product is probably the only way to stop it. If they can’t sell the product in the extra packaging, they will be forced to change the packaging before they lose all their plants of that type. Flooding these suppliers with messages from nurseries and retailers stating why they are not buying their plants. is the only way I can see to make this change. Consumer pressure is making similar changes in the food industry. We can make it happen here too.
There is strength in numbers. Let’s be proactive. Folks banding together CAN MAKE GOOD CHANGES HAPPEN!
Bonnie,
The industry as a whole is just becoming accepting of all of this. The best that we can do is protect and keep propagating the old, beautiful varieties that have been in the public domain for years.
Well done! Your post finally brings balance to this hotly debated subject. The guy in the bib overalls kept his sense of reason. Bless you
We realize that this information cannot be used as legal advice, but it fills the need for a clear explanation (in common everyday English) of the subject of patented plants. My personal feeling is that those who developed this slant to the patent system use complexity as a tool of intimidation against growers and retailers..
You also hit on the most important thing small growers and plany buyers need to do to combat the craziness… Keep the old varieties alive, well and appreciated by showing where they are often superior to the new patented plants.
Like you, Mike, I feel that there IS a place for the patent process because of the need to recoup the expense involved. My only objection comes into play when large corporations demonstrate over-the-top greed with their unnecessary extra expensive demands… primarily, the pots. I can understand the tags, but the pots are over-the-top and only demonstrate greed. Voting with our wallets by boycotting this product is probably the only way to stop it. If they can’t sell the product in the extra packaging, they will be forced to change the packaging before they lose all their plants of that type. Flooding these suppliers with messages from nurseries and retailers stating why they are not buying their plants. is the only way I can see to make this change. Consumer pressure is making similar changes in the food industry. We can make it happen here too.
There is strength in numbers. Let’s be proactive. Folks banding together CAN MAKE GOOD CHANGES HAPPEN!
something like 80+% of the WORLD’s seeds are now owned by 3 or 4 companies and those companies are busy both buying up heirloom seed companies and patenting varieties of vegetables and fruits. So it’s really really important that people grow open pollinated plants if possible to keep them in circulation.
American chem-ag companies ( Monsanto et al) moved into Iraq and destroyed their wheat gene bank of over 1000 varieties, and now the farmers there are only allowed to grow 6 varieties, 4 of which are for export as they are pasta varieties and the Iraqis have no tradition of eating pasta. Freedom to grow what you want and to eat what you want is under threat, best counter is to grow what you can and to encourage others to do the same. Once these varieties are gone it’s like the dodo or passenger pigeon, they aren’t coming back. ever.
Mike you are doing a huge community service by helping us maintain diversity in our lives with the flowers, trees you help us to grow. And through that diversity, freedom. Thank you.
*This post contains info for CANADA*
Mike,
In Canada, plant patents are called plant breeders’ rights (legislation: Plant Breeders’ Rights Act) and is regulated by CFIA. As I understand it, these rights prohibit you from propagating plants to sell, but you can make plants for yourself to your heart’s content which you may legally use in a few different ways.
Another thing I found interesting is that one of the conditions under which rights can be revoked is if the holder was unable to prove that the variety was being maintained, which I understand as meaning that someone cannot gain rights to a plant and then let it die out.
The following paragraphs are copied from their website:
Exceptions to plant breeders’ rights:
Plant breeders’ rights do not restrict anyone from using the protected variety for private and non-commercial purposes, experimental purposes, breeding and developing new plant varieties, and storing and saving seed harvested from a protected variety for planting by farmers on their own land.
How long do plant breeders’ rights last?
Once granted, plant breeders’ rights can last for up to 25 years in the case of a variety of tree and vine (including their rootstocks), and 20 years in the case of all other varieties of plants. The breeder maintains their rights by paying an annual fee. The breeder can surrender the rights anytime before the end of the 20 or 25 year period.
If anyone wants more information, here is the website and specific page:
Overview: http://www.inspection.gc.ca/plants/plant-breeders-rights/overview/eng/1335968583875/1335969867075
In depth guide: http://www.inspection.gc.ca/plants/plant-breeders-rights/overview/guide/eng/1409074255127/1409074255924#a1
If anyone wants to look up plants that are protected in Canada, go to this link to view status of applications and grant of rights. When you go to the specific plant’s page, it gives you information on whether the plant is or was granted breeder rights, when it has or will expire, and more information.
http://www.inspection.gc.ca/plants/plant-breeders-rights/varieties/eng/1300463863953/1300463978655
I hope this helps some fellow Canadians (and anyone buying/selling in Canada). For everyone else, it is worth checking out your own country’s regulations because the Canada and USA rules have a few but significant differences from what I’ve learnt thus far, so it’s safe to assume there could be differences in other countries too.
Cheers,
Clarissa
Thanks Carissa, very helpful for Canadians.
“ I understand it, these rights prohibit you from propagating plants to sell…”
That, to me, is the crux of the matter. No patent infringement occurs in private use. If I figure out the Kentucky fried chicken secret recipe, I can make it at home and have done nothing wrong, as long as I’m not profiting from it in any way, or giving it away.
If I buy a patented plant and take cuttings for my own yard, that is not patent infringement, and no company will ever take legal action against you for doing so.
Well, you are wrong. Any and all asexual propagation of plant that is still under patent is against the law.
hi mike can you tell me if a conevull weigea is it patient?
Patricia, I can find no record at all of that variety.
I have a neighbor that does nothing but complain. They have a “House Beautiful” and grounds. She left a message on our recorder that our maple (14yr.) is invading her purple plum. The maple is tall, three limes are over into their property. I can not believe the neighbor is complaining to us to cut back the maple. They have never trimmed the plum and it is very wide. I told my husband to let them trim the maple back. I can not believe of all the things people in this world have problems, they have to worry about some ones tree invading their purple plum. Should we let them trim the maple. My husband is 80 and I am 74 we are both retired. They still work and have plenty of time to waist on nothing.
There are many local laws covering this problem, but in general your neighbors don’t have to ask your permission to cut the tree limbs at the property line. Whether they can force you to do the cutting will depend on your local laws. I think you should start by calling your county to get its take on this very common problem. .
We’ve been on the other side of the fence (hah!) with this problem for a long time now: the limbs of our neighbor’s gigantic tree are directly over our driveway, and when their limbs fall, they are huge. The limbs have already smashed the windshield of my car and have recently damaged the hood of my present car. We can’t legally force the neighbors to cut them back, and if we have it done, the tree man told us he could not prune it, but could just cut the limbs at the property line. This way, he said, we would have two or more twigs sprouting from the cut limb, which, of course, means that we would eventually have two or more huge limbs over our driveway for every one limb that we have now.
It’s a difficult problem. If your neighbors go ahead and cut the limbs at the property line, the tree could look lopsided and not very attractive. I also know there is a law in some areas that if the overall health of the tree is jeopardized by lopping it off like that, the people doing the lopping can be financially responsible for the value of the tree.
Having lived through this, I would suggest that you first check with your county and if that proves unsatisfactory, that you ask the neighbors to share the expense of having the tree properly pruned, cutting back the offending limbs in the process and any other limbs that might be headed in that direction. Unfortunately, this was not an option with my neighbors.
I doubt that neither this problem nor your neighbors (hah!) is going to go away. Your tree is going to continue to grow and the neighbor’s tree is going to be invaded more each year. Good luck.
Years ago I found out that my Reliance grape required a royalty—so I kept track of Reliance cuttings or plants I sold—sent money to the USA university that hybridized it.
Then one year I rec’d an e-mail or a letter saying their patent expired & send them no more royalties.
Wish all hybridizes were so considerate
Cheers. Bert Dunn
Bert,
Your right and one that is so simple to work with. Most won’t take your money in the first place.
It would seem to me that if a plant reproduces on its own the offspring are entitled to their life, same as drowning “volunteer” puppies or kittens! Moving them to a new home should certainly not be illegal. What is wrong with our law makers?
Barb,
You are right and if they reproduce sexually, via seeds, then you are free to grow, sell and propagate that plant. It’s asexual reproduction of patented plants that is against the law. Budding, grafting or tissue culture are all forms of asexual reproduction. The patent gives the producer of the plant 20 years to profit from their “invention” just like any tangible product.
The lawyers I worked with in the automotive industry over the years were consistent in saying that a patent doesn’t give you the right to do anything. A patent gives you the right to stop someone else from making what you patented. However, if you hold a patent, it can be difficult and expensive for you to enforce it. You have to identify who is violating your patent and take legal steps to get them to cease and desist.
Mike, I believe I at one time had a list of plants from you could be propagated. Can’t seem to find it on the computer anymore. Can you possibly send that list out again?
Susanna,
You are probably refering to my list of 21 plants that are easy to grow and sell like crazy.
21 Plants that are Easy to Grow and Sell Like Crazy
The following 21 plants are really easy to grow and they sell like hot cakes. They always have been really good sellers and they always will be really good sellers. And this list is just the tip of the iceberg when it comes to plants that you can grow and sell that people want to buy.
1. Forsythia
2. Red Weigela
3. Varigated Weigela
4. Pink Flowering Weigela
5. Red Twig Dogwood
6. Fragrant Viburnums
7. All Flowering Viburnums
8. Potentilla
9. Dappled Willow
10. Pussy Willow
11. Daylillies
12. Hosta
13. Huchera
14. All kinds of Perennials
15. Armeria
16. Boxwood
17. Japanese Hollies
18. English Hollies
19. Rhododendrons
20. PJM Dwarf Rhododendron
21. Hydrangeas
22. Rose of Sharon
23. Dwarf Alberta Spruce
24. White Dogwood trees
25. Chinese Dogwoods
26. Blue Rug Juniper
27. Gold Flame Spirea
28. Gold Mound Spirea
29. Ornamental Grasses of all kinds
30. Crimson Pygmy Barberry
31. Rosy Glow Barberry
Okay, that’s 31 and I could go on forever.
Here are some plants for warmer zones, 8,9, and 10
Fragrant Tea Olive,
Gardenia,
Camellia,
Azalea,
Jasmines
Palm trees
Tropical Hibiscus
Burgundy Chinese Fringe Flower
Bogainvilla
Owari & Hamlin Oranges
Satsuma
Kumquat
Azalea (out the wazoo down here)
Crepe Myrtle (ditto)
Lilies
Camelias
amaryllis
hybrids such as Blossom Peacock and Papillo
Japanese Pieris
Satsuma’s
Star gazer lilies
Crape Myrtles of all kinds
Gardenia varieties-evergreen
Azalea varieties-evergreen & deciduous(native)
Camellia varieties-evergreen
Fragrant Tea Olive-evergreen
Nandina varieties-evergreen
Loropetalum/Chinese fringe flowers
Chase Tree
Abelia -so many new exciting varieties -good for zones 6-10!
Viburnums
Daphne
Cleyera-evergreen
Burning Bush/ Euonymus varieties…
Spirea -especially Bridalwreath, Little Princess, Goldmound…
Butterfly Bushes
Jasmines (vines-Carolina, Confederate)
Confederate Rose
Lady Banks Rose
Anise (check out Florida Sunshine)
Holly-Soft Touch/Sky Pencil/Youpon/Burfordii….
Crape Myrtles
Japanese Magnolias(Saucer, Betty, Royal Star…)
Southern Magnolias
Dogwoods
Red Buds
Japanese Maples
Evergreen hedge trees/shrubs
Leyland Cypress
Murray/Arborvitae
Japanese Cedar(cryptomeria)
false cypress(Chamaecyparis…)
Junipers-Blue Rug, Sargentii, Blue Point,…
Trees:
Chinense Pistache
Fruitless Mulberry
Weeping Willow
Live oak
Red oak
Catalpa
Vitex (or Chaste Tree)
Desert Willow
Shrub:
Nellie R Stevens
Wax Myrtle
Red Tip Photinia
Korean Boxwood
Radicans Gardenia
Loropetalum
Yaupon Holly
Perennials:
Salvias
Sedums
Butterfly Bush
Reeves Spiraea
Van Houtti Spiraea
Vines:
Honeysuckle (coral)
Crossvine
Star Jasmine
More info here: http://freeplants.com/wanted.htm
Your list of plants that are easy to grow is great, but why can’t I find an on-line list of all plants in the public domain ?
Rhonda,
That list would be very extensive and I’ve never seen such a list. Most of us just do a bit of research to make sure that what we are growing is in the public domain.
Mike sorry last name Houle
When I was researching the Trademark for the Peggy Martin Rose I wanted to propagate, I found that the Trademark had been abandoned. This leads me to think that maybe Trademarks need to be renewed also.
Kathy,
As far as I know trademarks do need to be renewed so you have to research each one.
WHITE FOUNTAIN WEEPING CHERRY sounds very interesting to me. I would like to have the free GARDENER’S SECRET HANDBOOK! I am handicapped so can’t do much physical work, but enjoy reading about plants & trees. Thank You!! j.w.
Did you edit this post? Because nowhere do I see what prompted a couple of people to say “sorry that you’re closing”. Your replies to them indicated that you wouldn’t be closing, but would just be making some changes. What changes??
Hey mike, do y’all have a Instagram and can i use your https://www.mikesbackyardnursery.com for the website?
Owen,
As of right now, no instagram. I don’t think I understand the rest of your question but if you want to link to https://mikesbackyardnursery.com/ from anywhere that’s great!
I purchased a weeping red bud tree after I saw one on your web site. It cost me $200.+ but we love it. It is about 9 feet tall now so it is nearly grown. It is beautiful. I saw the picture of the weeping cheery with the crooked trunk. Where can I find one with the trunk trained similar. I would appreciate your help, I realize it will not be cheap. Thanks I love your information I have learned a lot.
Not Sure , but if you like odd plants you can look into Espalier tree’s
https://en.wikipedia.org/wiki/Espalier
Picture
https://en.wikipedia.org/wiki/Espalier#/media/File:DSCN3598_espalieredpeartree_e.JPG
Hi Francis – Any cherry tree can have a twisted trunk like the one you admired in the phot0. Simply train the twists and turns into the trunk from the time the tree is a ‘whip’ – or a young, flexible stage of growth. Bonsai growers do this regularly.
Enjoy!
Please do put the patent address in your clips. I’m particularly interested in the Lace Leaf Maple… if I called it Fancy Red Tree, that should do it, huh?
I’m angry at this new twist. The gov has a strangle hold on all of us!!!
Brenda,
Most of the most beautiful Japanese maples in the world have been around long before plant patents. They are free to propagate. But always check the tag on anything new plant that you buy.
Ah, if only the White Fountain Weeping Cherry or Snow Fountains® Weeping Cherry Tree was pink. I have never seen the point of white flowers.
Kathleen,
Even if you don’t like white flowers, you have to love a tree that you can twist and turn the stem to make an incredible specimen plant.
I am for backyard growers rights all the way. Big industries hurt little guys/galls so much.
I am so sorry I can’t get the Backyard Grower’s System before it goes off the market. This, too, hurts.
I will continue doing what I can, as I can. Thank-you, Mike McGroaty for all you, and your son, do for us. It is VERY much appreciated always!
Colleen,
Thank you and you are welcome. I’m not going any where, we’re just changing the business a bit. Should be fun!
Personal opinion: Trademarks can last as long as they are being used in interstate or international commerce and are renewed every ten years. They are completely separate and different from patents.
In my own personal opinion plants/growers should be allowed trademarks but not patents – since they are living things. Patents should be things invented and “created” not live things bred or grown. A person never really has total control of the gene pool. I don’t want to think what could happen with patented puppies…
…Mike I have been a subscriber to your news letter for several years. I have always enjoyed everything you have written and shown us . Living in rhe wet of the PACIFIC NORTHWEST …I have been unable to take advantage of your growing system. I am on limited income , have been ill and just completed radiation treatment for cancer. Enough about me …
I have tried growing several shrubs and trees here. I live on the nearby range of Mt. St Helens and still have ash in my yard. Have lived here since ’71 and have no intension of moving. At this time I have no intension of doing so .. We are in a state with Fir trees, my back yard lost six 200 ft . Fir trees SIX years ago. They came up at the roots . I had six swim ponds out back. . This is heavy clsy soil where I am . During the windy Fall season the ash swirls to the foliage , mostly to the Fir trees, then it rains …down comes the ash again …this is what we have to contend with. I have a small pond in a shady area covered with Alder trees and mostly moss , succulents and low growing plants. There is not much space as my back yard is only 50 ft from the house to the back fence and therefor is only about ten feet that is considered flat area…the balance is hillside …
Thank you so much for your information and kindness lets keep in touch …Surely things will work out much better for us all
Best Regards, keep on growing
Beverley .
I would love to have a weeping Cherry tree I think they are beautiful.
Good info.we are losing our freedoms to do anything. I live in the city, you have to be a nursery to grow plants and get permits. I’m sorry to hear, your closing this site. I already paid to be part of backyard growers but cannot do it where I live.
Julia,
I am not closing this website. We are simply changing how we do business. It’s going to be fun! Stay tuned. In the city you can grow in a really small area in your backyard. It’s really all about how bad you want it. If there’s a will, there’s a way.
Please do not apologize for being a “dirt farmer in overalls” because you have such a wealth of knowledge that you so willingly share with us who have not been raised digging in the dirt. I have been learning so much from you. Thank you for your generosity. I began reading your newsletter with just curiosity and no knowledge and am fascinated by this plant propagation world of yours. I still feel inhibited by my lack of understanding but will keep reading. One day soon I will take that step.
Jan,
I appreciate your kind comments. Don’t be intimidated by something that is actually very, very simple.
Hello Mike,
I’m very sorry about your troubles and dislike the idea of you closing.
If you can, please send me the free book and info on the different plants you have to sell plus prices so I can buy some.
Thanks Mike,
Will be praying for you.
Carol Daniel
Fresno, Ca
I am not closing, we are just taking one of our products off the market.
There is a huge trend toward Heirloom vegetables, partly because you can save the seed and use it next year. Part of the attraction is the wonderful flavor of the Heirloom vegetables, and the variety of colors and shapes.
Maybe we all need to grow hollyhawks and morninglories instead of paying high prices for the newest thing at the nursery.
Charlene, I think you meant ‘hollyhocks’.
Not to be critical, just wanted to share the correct spelling to help avoid confusion.
Great article – I think the subject needs more research. I like leaving us with a call to action.
Why do I like the plant industry?
It’s the only one I know of that can actually leave a negative carbon footprint.
Your crazy tree-hugger friend,
Frank
Frank,
I like that. A negative carbon footprint.
You might also have noticed that many houseplants can no longer be had, and others that used to be very common are now very difficult to find. Strawberry begonia and begonia-leaf cissus being examples I’ve been trying to find locally.
Frances,
I’m sure they’re out there, we need to find them and make more of them.
There are some of those on eBay. It is a good venue for house plants and cuttings.
Thanks, Mike. Very good information here.
To see how the big companies are trying to drive the small nurseries out of business is just one aspect of the bigger picture. The ordinary citizen gets attacked from many sides these days. What is true in this nursery market reflects the other sectors like entertainment industry, food industry, pharmaceutical industry, big agriculture, internet, military-industrial complex etc. You don’t have to be a tea party fan to see these things. Sad developments. All the more time to go in the garden and see our wonderful plants grow!
Susanne,
I agree. I still believe that we as home gardeners can do our part to protect what really is ours.
hey Mike is this a full size tree and just pruned to look this way? I see they can get 20-30 feet tall?
Carrie,
Like most weeping plants White Fountain Cherry doesn’t know how to get upright. The only way that one could reach 20′ tall is if a person staked and trained it to grow that tall.
Mike, I planted a patented Hydrangea a few years ago. It spread and it’s lower branches contacted the ground and produced new plants at the nodes. I did not intentionally make new plants. Mother Nature did that naturally. The cluster is gettng too big. I need to dig-up the volunter plants and either move them, give them away, sell them or destroy them. Destroying them will give me much grief. I’ve done some “digging” on the Internet to find out if these volunteer plants are within or outside the patent, but can’t find out anything for certain about that. Do you know? Thanks, Steve
Steve,
Layering is a form of asexual reproduction which is prohibited on a patented plant. Volunteers from seed would be a different story. You should do what you think is right, but I would not sell them for sure.
Exactly why I think it is great to trademark and market a plant, but that a patent is not for living things.
I LOVE THIS TREE AND WOULD LIKE TO KNOW HOW I CAN GET IT, PLANT IT, GROW IT AND HOW MUCH IS IT/ please let me know.
Hey Mike I saw a nursery that put the names together calling it a white snow fountains cherry tree with no trademark on the name how can they do that? Michigan bulb does not have the trademark on the name either. It’s a beautiful tree I may need to get one but they are 50.00-100.00 very expensive.
Carrie,
Technically they cannot do that unless they are paying a royalty for using that name.
About trademarks . In my state of South Carolina anyone can get a state level trademark for a few bucks cost in registering it , but it is only good for the state of SC and must be unique from all other names used in the same industry (plants for instance ) This trademark can be used for any number of different plants to be sold under this name . Usually the trademark is registered under the name of an LLC or corp . And thus if the corporation becomes inactive (by not making annual reports or is dissolved) the trademark becomes invalid .
Thanks,
Alex
Alex,
Having a plant trademark that is only valid in one state would truly be on no use because plants are routinely sold by the thousands or tens of thousands across state lines. Plant trademarked names are registered in a national database.
Mike,
Thanks for taking time to try to explain the complexities of plant patents vice trademarked plants. (btw: Your understanding is the same as mine.)
I’m a landscape designer and not a lawyer. Below is what I’ve learned about trademarking as a result of a being in business, and is my understanding of it.
Trademarks are a way for a person / business to ‘legally protect’ a ‘unique’ name for the purpose of branding. It is commonly used to control use of the ‘name’ of the business or their product.
Trademark protections can be at the state or federal level. These agencies determine what is ‘unique’ or not, and grant the trademark accordingly. At the state level, the name is protected within that state. At the federal level, the name is protected throughout the United States.
The cost to trademark a name is set by the agency that is granting the trademark. The last time I checked, it cost thousands of dollars to protect a name at the federal level. In my state, it cost a few extra dollars to trademark my business name when I renewed my business license. This means that other businesses are ‘on notice’ that this name is protected and they should not use it for their own business.
If the name proposed to be trademarked is ‘common language,’ the authorizing agency probably will not allow it to be trademarked. For example, “tissue” could not be trademarked, but “Kleenex” is a unique name that could be trademarked (and is). In addition, ‘Xerox’ is a trademarked name for making copies on the equipment developed and sold by Xerox corporation. When making a copy on other equipment it is incorrect to refer to it as ‘xeroxing.’
Plant trademarks are just protecting a marketing name (not it’s ‘official’ botanical name), and is used to differentiate a plant sold by an entity, SOLELY for the purpose of creating a marketing brand. As one east coast nursery owner says, trademarking plants is ‘nonsensical’ because the official name is the botanical name as set by the ICN (see more on this below). Large corporations have been known to file a legal case against someone who uses the protected trademarked name without permission. This is called trademark infringement.
When I recommend a plant, I use the botanical name, as that is what is used by worldwide professionals (biologists, botanists, landscape architects / designers / contractors, horticulturists, etc.) to accurately identify unique plants. A botanical name is a formal scientific name conforming to the International Code of Nomenclature for algae, fungi, and plants (ICN).
The modern botanical nomenclature is based on a set of international rules that was adopted by an International Botanical Congress held in Paris in 1867. Subsequent congresses of scientific experts have modified the nomenclature periodically since then (more regularly starting in 1905).
The modern botanical nomenclature has its beginnings in the work of Carl
Linneaus (also known as Carl von Linné or Carolus Linnaeus) who wrote “Systema Naturae” in 1735. The initial biological naming system evolved over time with input from Carl’s colleagues. His “Species Plantarum” (published 1753) is considered the basis for today’s botanical naming conventions.
Botanical names are in one of these basic formats: ‘genus + species + variety’ or ‘genus + species + ‘cultivar’ or ‘genus + ‘cultivar’. Even trademarked plants have botanical names that follow the ICN rules.
Your readers can help clear the confusion by using the botanical name based on ICN, rather than trademarked names.
Kate,
I agree and thank you so much for adding great info on this complex issue. You’re right about the botanical names, but getting the gardening public to adopt those names is going to be challenging.
Mike, I have studied the Snow Fountain and the White weeping cherry trees in your pictures and all over the internet. I can say positively those trees in your picture are not Snow Fountain Cherry trees. If you would go to the L. E. Cooke company wholesale catalog they are selling the Snow Fountain Weeping Cherry. The snows have a much more profound Weep in their branches and perhaps larger flowers. At gurneys catalog they show a White Weeping Cherry listed as a Snow Fountain. The irony here is that the trademark owner owns Gurneys and several other nurseries. He’s attached his trademark to the other type of white weeping Cherry for some other reason. This person lives in Iowa but his corporations are in Indiana. He has many trademarks in his name.
I’m pretty sure that you are wrong. Snow fountain and white fountain can take on many different shapes and styles depending upon how they are trained. I’ve been working with them for about 40 years, I know these plants well and I know where the trademark originated and it was here in Ohio.
Mike and Son, We just love that weeping Cherry tree . Will it grow in central Florida? Thanks for all your insite. Nana’s Nursery Silver Springs, FL p.s. we are still working on reclaiming the nursery after a 2.5 yr hiatus.
Mary Ann,
Best thing to do is google Snow Fountain weeping cherry and see what zones that one is rated for. Good luck with the nursery!
Kate,
Thank you for contributing this detailed information to the discussion. However, it is not
quite complete:
>>>
Botanical names are in one of these basic formats: ‘genus + species + variety’ or ‘genus + species + ‘cultivar’ or ‘genus + ‘cultivar’. Even trademarked plants have botanical names that follow the ICN rules.
>>>
Technically speaking, a ‘variety’ is a naturally occurring variation in the plant – like the blue flowered dogwood Mike used as a hypothetical example of finding some new and wonderful variety growing in the wild. (Corus florida, one presumes, since that is the species native to Mike’s area.)
A ‘cultivar’ is a cultivated variety. As you know, this generally means a variation of a naturally occurring species that was given a boost over the normal odds by being grown under cultivation, possibly even through the process of specific parent plants being chosen over multiple generations. Or, it could simply be a ‘chance seedling’ among the thousands or hundreds of thousands of plants grown by a plant nursery.
It is my understanding that trademarked names are not part of the International Code of Nomenclature (ICN) system of naming plants.
In the USA, the Constitution originally forbid anyone from owning a life-form, so there were no plant patents. However,patents were first issued for ornamental plants in the early 1930’s for the reasons stated in Mike’s article above – mostly for protecting profit potential.
This was the ‘foot in the door’ that large, powerful corporations like Monsanto, DuPont Pioneer, and others needed to later pressure the Supreme Court of the USA into allowing patents on food and crop plants.
(Interestingly, Monsanto and other chemical corporations have managed to ‘have it both ways’: convincing the USDA and FDA that their laboratory-created plants, including both trans-geneic GMOs (plants that have genes from species forced into their DNA that could NEVER cross in nature, like the famous tomatoes with fish genes) and the newer ‘CRISPR’ technology that scrambles the DNA within a single species)
are not different enough from naturally occurring plants and animals (like the GMO salmon) to require testing or regulation…
…. but they tell the patent office that these organisms they have created in their laboratories are ‘unique’ and have therefore obtained patents for them.
Neat trick only likely to be pulled off by large corporations.
Unconstitutional, interesting…In my opinion it’s well and fine to trademark and market the plant under that protected name, but I do not believe a living thing should be patented – which is for “created or invented” things, not life. Leave it to our govt (and big corporations who run it) to continue to whittle away at the constitution.
PS regardless of advanced technology, they might modify it, but no one has actually created life yet, at least that I know of.
I’ve been wondering what impact the whole patenting and trademarking of plants might have for us home gardeners. Thanks for the thorough discussion!
Thanks for the extensive guide! I was always confused about the trademarked plants and there isn’t a lot of clear information on the web. I think it’s a pretty nasty game that the big companies are playing!
So can a trademarked plant be propigated. but not marketed under the trademarked name? Thanks for your help to all of us newbies in the industry .
To the best of my knowledge, if a plant is not patented it can be propagated. After the patent expires it can be propagated at that time. The trademarked name is protected for a much longer period of time and to me is considered off limits forever.