|PLANT PATENTS & TRADEMARKS|
Times have changed since our mothers and grandmothers cut back a plant and stuck the cutting in some dirt under a jar to make a new plant just like the old one. Now we gardeners have to be aware of plant patents and trademarks.
Plants that carry restrictions on how they can be increased also carry tags telling us so.
You will notice that many of today’s plants carry the designation PPAF (Plant Patent Applied For) followed by a number or PVR (Plant Variety Rights). The tag may just have a number after the cultivar name. It could say Patent Pending. If a plant has one of these designations, then it is illegal to take cuttings and propagate the plant.
You cannot propagate this plant asexually, which means you cannot take cuttings or make new plants in any way, such as budding or grafting, except with seed. Seed reproduction is OK. Often, seed will not come true to type. Tissue culture or cuttings will.
This, from the U.S. Patent and Trademark Office: "Grant of a patent for a plant precludes others from asexually reproducing or selling or using the patented plant. A plant patent expires 20 years from the filing date of the patent application. …when the plant patent expires, the subject matter of the patent becomes public domain."
With all of these restrictions, you might wonder if you can safely grow the plant at all in your own garden. Yes, you can. Growers are attempting to keep exceptional and/or new plants from becoming either commonplace or corrupted or both.
Wholesale growers must have permission to reproduce patented and trademarked plants. This way, the plant originator can control who does the propagating, insuring good, strong, healthy, true to name cultivars.
Trademarking is another process altogether. This, from Oregon State University: "A trademark on a plant protects only the plant’s name, not the plant cultivar itself, as with a patent. Another person could propagate a trademarked plant, but not call it the same variety name.
A trademark can be renewed every 10 years. It’s faster than getting a patent. If the plant you purchase has this symbol ® by its name then it has been registered and trademarked. ™ by the plant name tells you it is not officially registered, but the name has been claimed.
Oregon State University also explains, "Unlike a patented plant, if you buy a trademarked plant, you can propagate it asexually by taking cuttings. You can even sell the propagated plants for profit, but you can’t call those plants by the trademarked name or acquire your own trademark for those same plants. You can, however, use the plant’s cultivar name if it has one (shown in single quotes) – assuming that it isn’t also patented."
It’s possible to propagate old time plants and plants without numbers or restrictive designations. But times they are a’ changing. Patented plants that we consider "ours", plants we have paid for and planted in our own gardens, still require a license from the patent holder if we want to take cuttings and make new plants.
Here are a few plants that we cannot reproduce from cuttings:
---Posted by Anne K Moore, December 1 2008---
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