"And plants can be a named cultivar without being patented." This was kind of my point. There had been for over a hundred years before the craze of patenting really took hold in the 1990s. Classic varieties like the pastel Chrysanthemum 'Mary Stoker' moved from producer to producer and slowly acquired the reputation they have as time-tested varieties. If 'Mary Stoker' had been patented, it's possible the original producer would have thought after a couple years "OK, people are tired of Mary Stocker, we better start offering the brighter more saturated 'Mary's Daughter'" and the better plant would have been lost to commerce eventually. I was using a bit of hyperbole to say it is ruining horticulture, but I don't think it's a good trend, overall. Nurseries that grow their own plants on a purely ad hoc basis (i.e. and e.g., don't have any patented varieties...think the former Seneca Hill Perennials) tend to struggle anyhow. It's not like they were really posing a threat to huge mega producers like Sunny Border, Monrovia, etc. A lot of those producers breed their own plants. So the only ones they have to worry about poaching their strains is another large wholesaler. But somehow this didn't affect the industry as a whole until about 1990. (there were patented varieties before then but it was very uncommon) As for the species vs. cultivar debate, I do think it's valid to bring that up too. I like to have a mix of species and cultivars. A garden entirely of flashy cultivars would not be to my liking. In the world of rhododendrons, for example, people like Frank Fujioka and Jim Barlup have bred utterly amazing looking plants, but if you know rhododendrons, you wouldn't think in a million years that nature could have produced something similar. So, I see such plants as more of a accent to have here and there. I'd say in my perennial bed I only have a few plants that are obviously hybridized but they have their place. For example the Gaillardia called 'Tokajer' which is one of the only Asteraceae I grew that definitely looked hybridized. I don't care, for example, for the new strange Echinaceas. But the 2 plants I mentioned had serious ornamental appeal and it's a shame some small fry isn't allowed to continue propagating them for the handful of people who still want them. Maybe I'm complaining more about the nature of the licensing and whatnot than the notion of patenting itself.

You are confusing patent and copyright. See Mitchell v. Hawley, 16 Wall. 544, 21 L.Ed. 322, 83 U.S. 544 (1872) (hereinafter referred to as "Mitchell"): "Sales of the kind may be made by the patentee with or without conditions, as in other cases, but where the sale is absolute, and without any conditions, the rule is well settled that the purchaser may continue to use the implement or machine purchased until it is worn out, or he may repair it or improve upon it as he pleases, in same manner as if dealing with property of any other kind." In 1872, the US Supreme Court held that sales by pantent-holder with conditions (e.g. "Asexual Reproduction Probited") are absolutely binding on the purchaser and all acquiring title from the purchaser. See Diamond v. Chakrabarty, 447 U.S. 303, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980), where US Supreme Court held that "a live, human-made micro-organism is patentable subject matter under [Title 35 U.S.C.] 101." See J.E.M. Ag Supply v Pioneer Hi-Bred Int'l, 534 U.S. 124, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (hereinafter referred to as "JEM"), where the US Suprme Court explicitly affirmed the application of § 101 to plants. In addition to § 101, in 1930 the US Congress enacted the Plant Patent Act (PPA), which made patentable the asexual reproduction of plants. The PPA was recodified in 1952, but substantively remained unchanged. Also, in 1970 the US Congress enacted the Plant Variety Protection Act (PVPA) which grants patent-like protection for certain sexually reproduced plants. To not go into granular detail here, it is sufficient to say that plants are patentable under three different regimes under US law - each affording different types and levels of protection to the patent-holder. When a patent-holder makes a sale, the sale comes with a license delineating the scope of the use of the thing the purchaser is actually buying. For example, Mitchell stands for the premise that a patent-holder could sell a machine under a license which stated that the purchaser is not entilted to repair or maintain that machine - in which case the purchaser could use the machine until it wore out, but no further. Without restricitve language accompanying the sale, the purchaser is understood to have all rights to use, maintain, and resell the property. Here, you appear to have a sale with limits on the scope of the granted license - which means absoultely no asexual reproduction - even if that measn to the ultimate detriment and demise of the plant. That said, I can't imagine a situation where a patent-holder is going to take Grandma to court for dividing her hosta, but this is quite a litigious society in which we choose to live, so who knows... I have one question: Is a hosta a tuber? I know it has rhizomes, but are all rhizomes also tubers - sort of like all squares are rectangles? Or are tubers something special - differnet from rhizomes? I ask because the PPA specifically excludes tubers from the class of protected plants. The PVPA includes two exceptions: one is for stock seed for farmers and the second is for plant breeding and fundamental research. A § 101 patent (also called a "Utility Patent" by the US Supreme Court) is the most comprehensive type of patent, but is also the most difficult patent to obtain (which is why Congress wrote the PPA and PVPA - according to the Court). At the time the Court decided JEM in 2001, "[t]he United States Patent and Trademark Office (PTO) ha[d only] issued some 1,800 utility patents for plants, plant parts, and seeds pursuant to 35 U.S.C. § 101." So, whether or not a hosta is a tuber is a significant question with regard to enforcability of patent claims by patent-holders.

I agree that there should be respect for trademarked/patented plants but I think the industry at large needs to educate the public clearly what their expectations are. For the sake of argument lets compare the nursery industry with the music industry. My very fuzzy recollection of a few short years ago when Napster was giving away free music downloads the music industry immediately shouted loudly that they felt it was piracy and quickly organized to protect their intellectual property. It didn't take long before the general public was clearly informed that downloading music without paying the artist was illegal and I recall them taking some kids to court over the issue although I don't recall the outcome. Now granted tracking intellectual property rights for plant material would be far more difficult if not impossible over the life of the plant (every time a property changes homeowners a Hydrangea Endless Summer becomes just a Hydrangea that has an abundance of blooms even after a rough winter/spring). I do find it curious that so much time, money and effort are being spent to trademark/patent plants with little or no public education. Whats the point?

A large portion of the patented plants here in the US have been bred rather than produced from sports, etc. If I had to guess, I'd guess that 85% or more are the results of intentional breeding efforts. Lots of professional plant breeders/hybridizers/growers have fairly large operations, where hundreds or thousands of plants are produced, evaluated, and narrowed down to just a few individual plants that are later introduced into the trade. Lots of money, time, and effort are sometimes represented by a patented plant. Personally, I think I would be fine with the US laws being changed to allow for private/non-commercial vegetative propagation of patented plants. I think it's pretty commonly done already, and most people that would do it then are already doing it now. I still think it's a good idea to know what the law is, now. I think very few people really understand the US laws regarding plant patents, PVRs, or the other more unusual plant-related protections...not to mention the trade-name/trademark issues.