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!