Are plant patents a good thing or a bad thing? Is this just “Big Brother” controlling what we do in our own garden?
First, let me put this out there. I am not an attorney. I will explain this as I understand it but keep in mind, I am a “Dumb Ole Dirt Farmer”, don’t take legal advice from me.
Plant patents are a good thing. We have patent laws in this country to encourage and protect inventors of all kinds of things. If there were no patent laws people would have no incentive to try and bring new things to market because as soon as they released them to the public, others would steal their thunder, run off with their inventions and deny them the compensation they are due for all of the time and effort they put into their inventions.
But all patents as far as I know have an expiration date. With most things, I think it is seventeen years from the date of the patent being issued.
With plants, a patent runs from the date of application for a period of twenty years.
These time frames allow the patent holder an ample amount of time to profit from their invention until the patent expires. At that time, as I understand it, others can start building that device or in the case of plants, others can start growing that plant legally.
Do these rules apply to me at home, in my backyard?
Yes, they do. When a plant is still under patent it is unlawful for anybody to propagate that plant for any means, personal use or otherwise.
Sexual verses Asexual Reproduction.
What’s the difference? Sexual reproduction is the way that nature intended for plants to reproduce. A seed falls off of a tree, drops to the ground, and months later that seed germinates and a new tree comes up. That’s sexual reproduction.
Asexual reproduction is people like you and me taking a cutting from a plant and coaxing that cutting to produce roots on the butt end so not only do we get a new plant, we get an exact clone of the parent plant that we took the cutting from. We are literally cloning plants.
Plant Patents Usually Protect Plants from Asexual Reproduction.
Why only asexual reproduction? Why not sexual reproduction? Do you mean that I can take a seed from a patented plant and grow a new plant from seed? Remember, I am not an attorney, this is not legal advice. But, as I understand it you can. Because that seedling is not going to be a clone of the parent plant.
Think about people. We all have two parents and we are created by means of sexual reproduction. Our parents can have 15 kids and those kids are likely to share a lot of the same features, not only of their siblings but features from each of their parents as well. However, those kids will not be clones, they will not be identical. They will all be similar to one another, but all unique in their own way.
Plants are like that as well. If you want an exact clone of a plant you need to reproduce that plant by means of asexual reproduction. That’s why plant patents protect patented plants against asexual reproduction until the patent expires.
Once the Plant Patent Expires does that Mean that it is Open Season to Grow and Sell that Plant?
Yes and no. Most growers who apply for a plant patent also give their new introduction a sexy name and they register that name as a registered trademark. You know, the little circle with an R in it? When you see that trademark symbol after the name of any product you know that that name is now a trademark and protected from anybody else using that trademark.
Even though a plant patent has expired, it’s likely that the trademarked name is still protected and will likely be protected for a long, long time because trademarks can be renewed.
What Good does it do Me if the Plant Patent has Expired but the Name is Still Trademarked?
Again, I am not an attorney, but as I understand it, once the plant patent has expired you and I are free to propagate the plant via asexual means, but we can only sell it by its given botanical name. We cannot use the trademarked name unless we enter into an agreement with the person that owns that trademark.
In example. A friend of mine, a local nurseryman, introduced the “Lavender Twist” Weeping Redbud tree and he registered the name “Lavender Twist” as a registered trademark. The botanical name of the tree is Cercis Canadensis ‘Covey’. The plant patent on this tree expired a few years ago and as Tim explained it to me it is now okay to propagate and sell the tree using the botanical name. But if you want to use the registered trademark you would have to enter into an agreement with him and pay him a royalty on each plant you sold using that name. Usually around one dollar per plant on a tree like this.
With things like smaller perennials, the royalty is often less than 50 cents.
Selling Patented Plants. How does that work?
In my nursery, I grow and sell a number of different perennials that are patented and have registered trademarks. The process is simple. I don’t propagate these plants, I simply buy small plugs from a large grower that specializes in this area. They are licensed to propagate these patented plants. I buy the small plugs from them. I pay for the plug, then I have to pay a small royalty fee that gets sent on to the person or company that holds the plant patent, then I am also usually required to buy a pre-printed plant tag that shows the plant patent number and the message that these plants are not to be propagated. In some cases, we even have to buy the branded pots that carry the brand name on the container.
Isn’t that expensive? The actual plugs are very reasonably priced, the royalties on most perennials are usually 25 to 50 cents and the plant tags normally run around 18 cents each. But that still allows us a good margin of profit and since we are not propagating the plants ourselves, we can turn them over very quickly.
Can I Become a Licensed Propagator of Patented Plants?
Yes and no. There are some patent holders who will happily sell you a license to legally propagate their patented plants. A license might cost $1,000 and then you are required to pay the royalty on each plant that you propagate and sell. The royalty is usually paid by the person buying the plants so you simply collect it and pass it on. On trees, the royalty might be around one dollar.
With the mainstream patented plants that you see in most garden centers, you know, the ones in the pretty branded pots, the chances of you getting licensed to propagate and sell those varieties is probably pretty low. They are really looking for growers that can do at least 10,000 pieces of each patented plant that you want to be licensed for. And even if you can do that, they might not be looking for any additional licensees.
How Do I know if a Plant is Patented?
The easiest way to tell is to check the tag. Patented plants should always be sold with a tag that shows the Plant Patent Number (PP 1234546). You can also Google the plant and do your own research. You can search the Plant Patent Database but I don’t like doing that because if you don’t enter the info perfectly you might end with a false negative search. Instead, I look at mainstream wholesale growers to see if they show the plant with a P.P. number. They are usually very good about that. Or, if you are a Member of Our Backyard Growers Business Center, all you had to do is ask. Our members know all about what is patented and what is not. If not, we’ll do the research and find out.
One of our members just shared this today, Google actually has a patent search feature here: https://patents.google.com/
What Makes a Plant Qualified to Be Granted a Patent.
For the most part, new plants come to us in two different ways.
- Chance seedlings. Let’s say that a grower sows 80,000 seeds of Norway Spruce and those seedlings germinate and grow 79,999 of them all look alike. They look like a typical Norway Spruce. And by the way, most conifers are grown from seed and not cuttings. Unless they are rare and unusual varieties, then they typically have to grafted onto a seedling. But that’s a discussion for a different day. But that one, that one seedling that looks totally unique and might have weeping branches, that one is a growers dream! That one is to be watched, propagated and studied for a number of years. With new introductions like this a grower has to grow out and duplicate this plant over and over to make sure that it is going to remain stable.
In other words, the grower has to prove to the U.S. Plant Patent Office that this plant is truly unique and every clone of this plant has all of the unique qualities of the original plant. That plant is qualified for and likely to be granted a plant patent. However, new introductions such as this have to be grown in a controlled and cultivated area, like a nursery. If you happen to be walking through the woods or a cow pasture and see a totally unique plant that happened to grow from seed, that plant is not, as I understand it, eligible for a plant patent because it’s a chance seedling sent to us from nature.
That is a really important aspect of the plant patent laws. Big business cannot control any and all new plant introductions. A new introduction has to be something that they were deliberately growing in a controlled and cultivated environment. - The second way that new plants come to us is through very intensive and deliberate plant breeding programs that involve manually cross pollinating plants, collecting those seeds and growing them out to see if those efforts produced a new, unique and beautiful variation of the parent plants. After Tim Brotzman introduced the Lavender Twist Weeping Redbud tree he spent another twelve years trying to and eventually successfully creating a similar tree with white flowers.
Twelve years!!! Let me ask you this question. After spending twelve years, using a lifetime worth of skills as a nurseryman developing new and unique plants, don’t you think that he deserves a patent on that plant? Especially when you consider the patent only gives him 20 years to profit from all of that effort before the plant becomes public domain.
Of course he does, and that’s why we have plant patent laws.
Are all Plants Patented?
Of course not and in Our Members Area we make it our goal to make sure the buying public will always have the opportunity to buy these beautiful plants that have been in the public domain for years and years and years. And trust me, this is a very noble cause, something that I am extremely passionate about.
For example, a few years back I was at a wholesale trade show and I stopped at the booth of a nursery that specialized in Hostas. I asked them how many different varieties they offered and the answer was currently, about 212. Then I asked the million-dollar question; “How many of them are patented?” The answer was telling. They said that of the 212 different hosta varieties that they offered, only about a dozen of them were patented.
That means that there are at least 200 beautiful hosta varieties out there that are in the public domain, meaning that you and I are free to propagate and sell them to our heart’s content.
Public Domain Plants Getting Pushed Off the Edge of the Earth!
It’s true. As you stroll through your local garden centers and start looking at the plants, the pots, and the plant tags you will see lots and lots of patented plants. It’s just the way that the industry is going these days. But trust me when I say to you, there are thousands and thousands of beautiful plants that are in the public domain, and in many cases, I think those public domain plants are better, prettier, and grow better.
Think about This.
We as growers and gardeners have an obligation to the world to make sure these public domain plants never become extinct. We have to save them! We have to keep them relevant and available! And that is my passion and as time goes on I’ll write more and more about this.
and . . . Think about This.
If you are propagating, growing, and advertising these public domain plants that are being purposely pushed off of the market you will almost be the sole source for these plants. Especially in your area. Nobody else will have them because they are all growing to satisfy that big garden center market. My goal over the next few years is to introduce you to some of the most beautiful public domain plants that you have ever seen. Really, I hope that becomes the mission for the rest of my life. It’s the least that I can do for the plants that have served me so well for so long.
Every last one of them, free for you to propagate and sell.
Questions, comments, mean things to say? Post them below and I will respond. Until then, by any and all means stay inspired!
Hi Mike, In Instagram many big influencers are propagating patent plants for their own use. A girl said in her country (Poland) you can propagate asexually the patented plant, like those famous hydrangea.
Vivian,
Plant patent laws are on a country by country basis as far as I know. But in the U.S. it’s very much against the law to asexually propagate any plant for any reason that is still under patent.
Mike, Thanks for explaining this important topic in plain English. What was a confusing world of terminology & ” legalese” is no more. In all my years of college courses & beyond
in Agronomy & plant sciences, this topic was NEVER DISCUSSED !!
So no wonder when I go to the grocery store & get “sticker shock” at the sky-high prices for certain apples. At $5 EACH for the newer varieties such as Cosmic Crisp, Riverbelle, Pizazz, etc , these are often beyond my modest budget. The “Club apple ” schemes have made the breeders & big nurseries a handsome financial return, but have driven up our food costs. Granted, these ,”Club apple” varieties are truly crisp & delicious- but pricey..
Keep those hands dirty & keys tapping!
Catherine,
You’re welcome. I do what I can do.
I’ve been doing some research recently and found that the patent on Heuchera ‘Amber Waves’ expired back in Nov of 2020. I think this one was in one of your videos. I also found that the patent on Ouachita Thornless Blackberry will expire on 10/24/2023. Will the Backyard Growers Buisness Center be accpting new menbers antime soon? Happy New Year!
Paul,
Yes, Amber Waves Heuchera was one of the ones that I featured a few years back. Yes, we will be open for new members soon. http://backyardgrowers.com/join
Because many of us believe in recycling, we use old plant pots…just be careful it doesn’t have a brand name on the pot if you are going to sell it. I just found out that reusing “Proven Winners” pots when you are selling a plant is a no no. So black pots are good, brand name pots are not.
Ann,
You’re right about that. We use proven winners pots around the nursery for heeling in cuttings etc. but never sell a non proven winners plant in one of their pots.
One thing to note, is that sometimes gardening groups don’t pay attention to patents. An American Rose Society in one state actually propagated patented roses and gave them out at a society dinner about 10 years ago…serious oops!
Also David Austin has retired many roses that are now out of patent and hard to find. Patents are for 20 years on roses, but the David Austin names are trademarked. For roses there is a shorter almost nonsense name that is used. For instance Charles Darwin trademarked rose is also AUSpeet. (Under patent until 2023.). For roses, helpmefind . com list the patent date. Starter well rooted cuttings of out of patent David Austins are going for $15-20 each. So if you have old David Austins now is the time to make more.
Some very famous roses are out of patent: Mr Lincolin, Tiffany, Tropicana, Queen Elizabeth
Great info, thanks Ann.
Thank you, Mike, for the updated information. Even though it will PROBABLY never be needed by me, I’m quite sure that it will help other patrons.
Mike,
The knowledge that you and the group members share is so valuable. I crave learning all that you share. This was a good article and very helpful. I certainly agree that those Patents are well deserved and I would never want to short change anyone and so I find this information very beneficial to us new members who are trying to learn. Thank you for never forgetting what it is like to be the person that is just starting out.
Tamara,
That’s why I do what I do. I do remember what it’s like to be just starting out, starved for good information and advice.
Mike, you all are just GOOD people…I also enjoy your website
Thank you Denise.
Great article filled with lots of must know items. I enjoyed it and gleaned knowledge needed to start propagating. Thank you.
Hi Mike,
Great article – I applaud you for wanting to save the non-patented plants. The food seed-savers have been working to save our food supply for years – heirloom and open-pollinated seedsl The huge industrialized corporations have been busy buying up farmland and the seed supply – not to mention small family farms. There are some holding out – will it be enough in the long run? Doubtful. Those corporations want to control our food supply – it’s not a joke. ”
It’s a long, sad story and it’s complicated – not a “yes or no” answer for anyone. Here’s an example: 75 yrs ago, you could find dozens of one kind of seed – pumpkin, for example. Now you see maybe 1 or 2 kinds of pumpkins in the grocery store. And those are pretty much grown for carving, not eating. There used to be dozens of the best “eating” pumpkins of all shapes and colors! Because of seed-savers, there are now quite a few more for home growers to grow but not commercially…..just not available in open-pollinated seed for the big farmer. If a commercial farmer grew open-pollinated seed – non-gmo- on his farm, he would be sued by the pro gmo commercial farmer next door for “contaminating” his gmo crop! And he would win in court! Those corporations don’t want you to save seed – they make HUGE profits because the farmer has to buy that seed every year forever to grow the only pumpkin seed available.
Sounds weird – it is. And way more complicated than what I tried to explain. I’m an organic gardener who grows the best food on the planet. Organic food that you can’t find in a grocery store. Anywhere. You have to start it from seed yourself because you can’t get seedlings in a nursery, either – they usually sell only a few varieties of any one kind of veggie seed. But it’s fun to do and oh, my…..it’s definitely worth it!!!
Sorry – I didn’t mean to be so long=winded….but I see the writing on the wall for this kind of plant now and I am so appreciative that you are spreading the message for people to be aware of – hopefully people will pick up the baton and run with it!! After all, we have the best coach and head-runner in the business!!
THANK YOU, MIKE!!! YOU ROCK!!!
Connie Hoffman
Proud Member since 10/19
Thank you Connie I appreciate that.
Connie, I love that you are spreading the word on saving our seed genetics! I don’t know where you are, but in the PNW we have 3+ seed companies that are organic and carry locally adapted seeds as well as ones from around the world in climates similar to ours. Some only sell on-line, some sell at local nurseries. I love supporting them and all the farmers that grow for them.
Thanks Mike very informative. I look forward to all your wisdom for my garden.
Good morning,
Do you have a link to the names of plants that can’t be sold by the common folk? Maybe name and picture? Like you said it all can be confusing.
Bill, here’s a partial list, it’s best to research each plant that interests you rather than trying to find things that might be near impossible to find. In our members area all it usually takes is a question to get that answer. http://backyardgrowers.com/join
https://mikesbackyardnursery.com/2019/03/non-patented-public-domain-plants-that-you-should-be-free-to-propagate/
good to know…. and by the way, you are not “just a dumb old” anything, we appreciate your expansive gardening expertise!
YESSS!! to what Joanie said… much gratitude and appreciation, Mike!
I enjoyed the article very much. The information was clear and easy to follow. I want to be legal. I think most gardeners and especially home growers who resell want to be legal. The problem is finding those unpatented plants that are public domain. Many older gardeners are not aware of the name of the plants in their yard.. The large box stores even large grocery stores/supermarkets stock plants that have the patented label in the plant. Where do you suggest growers who want to be legal get many of the plants listed on your public domain lists?
Joanne, the short answer and it’s going to sound like I am trying to sell you, but our members area, http://backyardgrowers.com/join, is full of plants that are in the public domain, usually for just a couple of dollars each. And for only $7 you can use our site for a full 30 days.
great article Mike… do you have a link to an updated non-patented plant list??? thanks!
John,
I have a very limited list. https://mikesbackyardnursery.com/2019/03/non-patented-public-domain-plants-that-you-should-be-free-to-propagate/
Mike, Great article! Very informative and well presented. I love the old stand-byes that are in the public domain and I agree they are often the hardiest varieties.
I alway wondered how that worked, now I know.
Thank You
Hello Mike,
I live and grow plants professionally in Malta. I also have been following your website for many years and have to say that in my book you make a lot of sense. I was touched by your assertion that you intend to promote growing of unpatented plants thus ensuring their survival, even making it your life’s mission!
Like somebody I know keeps on saying…..,,by all means stay inspired.
Sincerely
George Mifsud
Thanks George, I appreciate that.
Thank you for working to protect unpatented plants.
I know this is vital in the realm of food plants too.
The food supply is under huge stress now. I believe patents and gmos further restrict it. That and monopolies and destroying family farms to buy them up are making us vulnerable to control.
Thank you for sharing your knowledge and experience on the subject of plant patents. It’s always been a bit of a mystery to me.
This was Awesome a thank you for taking the time to put this together. I’ve been a fan for a couple yrs. I’ve tippy toed around this giving to family and friends for yrs. I so want to do it for a living. You always make me feel I can do it.
God Bless you and your family Mike. When I financially can..I truly want to buy your teaching. I feel when I do I’ll take my courage off its shelve.
Blessings joy and health
Tammy
LittleJordanFarm
Tammy,
If you are seriously that interested I suggest you invest $7 and test drive our members area for 30 days. Then just let Duston know before the 30 days are up and he will make sure that you are not billed again. http://backyardgrowers.com/join
So appreciate the time you spend to address the questions and concerns we have. I read everything you write Mike.
Many thanks and please keep it coming.
Robyn Kirkland
Thank you Robyn, I appreciate that.
Some more very useful information there again, Mike. Thank you for publishing it.
good areticle, very helpful
One more thought. If vegetables are genetically modified, will we not be allowed to grow food. “Food for thought”. People should be watchful and proactive on this topic.
Kendra,
I might be wrong on this because I am not well versed in this area, but GMO seeds etc. mainly apply to large commercial farms, I’m talking thousands of acres. And keep in mind, those farmers do not have to use those seeds. They choose to. But to knowledge all the vegetable seeds that you and I can buy are not GMO at all.
Thank you! This is very useful information, clearly stated.