How do you regard other laws? Are they all made to be broken?

What Patricia is saying is that this rose is protected by a Patent and it is breaking the law to propagate and distribute plants of it. Best to just go buy one. Its not too late to order one from David Austin Roses!

Paul

Unfortunately I had no idea it was a "protected" rose with a patent. If anyone else has any NON patented english roses that are orange I would love to trade for cuttings of those! Sorry about the mistake. I have two roses in my yard right now, that is all, I am new to this forum. I have mints that are protected "patented" I don't take cuttings and root them they run and root themselves. Could they be "arrested" for unlawful propagation? Just kidding, but seriously it happens.

hemlady,
take a look at the Patricia, are you and others in Alabama ok thread on this forum.

Melis,
David Austin has only recently begun releasing orange roses. His first was Pat Austin. The EU patent on it began in 1995.

Here is a link that might be useful: The reference to the EU patent.

Here's the link to the US patent, applied for in 1995. That means that in twenty years from 1995, it will be available for propagation, IF they don't apply for an extension.

The reason I reference Pat Austin is that it's his first real orange, and it's under patent for seven more years, so his more recent oranges will be an even longer wait.

(Austin is famous for getting patents on his roses. Everybody kind of gets to know this with time. After the patents run out, he has the well known names copyrighted, which means that out of patent plants can be sold, but only under their registration names (AUSmum for Pat Austin) and not under the name Pat Austin, if he's copyrighted "Pat Austin"

Here is a link that might be useful: Link to the US patent.

Melis, regarding your mints - I have wondered about plants that propagate themselves also. If you had a patented one and it multiplied, would it still be illegal to dig up some of it and sell it? I guess it would..the idea is that nobody but the breeder can or should profit from the sale of it.
But in one's own yard, would it be immoral and unfair to the breeder if you divided a patented plant and put a piece in another spot? If that is wrong, I think I might steer clear of any patented plant because one of the really neat things about gardening is how plants increase on their own. I mean, you could have a patented plant that really NEEDS to be divided. If it's wrong to use a clump of it I guess you'd be obligated to throw it in the trash. Now that would be a strange way to handle a piece of the natural world.

Linda

Before we split too many hairs here I am comfortable in interpreting what patents, trademarks etc mean from the breederÂs point of view. But first keep in mind this.

People like DA spend a LOT of money breeding roses. It is only because they do so we have new roses. It is only because they get a royalty they can afford to do so. So patents are not something put on by the breeder to play "gotcha ya" they are put on to protect their artistic rights and produce an income to continue to breed new roses.

All of that being said I have yet to meet a breeder who is going to go Orwellian on us because someone divides a plant or takes a sucker and plants it in another part of their yard or even shares the odd piece of that is or that plant with a neighbor.

The issue is more when people go on a public site and Âadvertise" cuttings of a patented plant even for trade. That IMO crosses the line and I feel most breeders feel the same. Hopefully Paul B will jump back in on this thread since he is an actual rose breeder  something I am not since I represent breeders but donÂt breed roses myself.

It obviously seems clear to me that the OP didnÂt know how this works and upon discovering now understands better how this works and respects it. So melis001 if a rose even under patent throws up a sucker and you give it a friend privately, without posting it on a forum I personally donÂt think you fill find the rose police on your doorstep as long as you keep it private. So enjoy what is a lovely pastime and spread the word.

Paul Z

PS. I will add as a small rose nursery owner that the trading of cuttings could contribute to the demise of small nurseries. I realize planting swapping is a time honored tradition and a great way to spread roses to people who may not have wanted to try them. But IMO there is the possibility of a point being reached where the nurseries, who gather, collect, preserve and make available the roses to be swapped will be hurt. So swap away to educate, but be mindful of who most likely put the roses out there in the first place and help drive the resulting business our way. We are all cogs on the wheel in this.

Paul, I am not arguing about whether rose breeders have good reasons to receive their royalties.

Linda

Erasmus, I know you aren't and didn't mean to imply that. I thought you drew a very clear distinction between digging it up and selling it and digging it up and sharing it. While technically both are illegal I was just trying to point out that most breeders I know would have no issues with the sharing. And that plants increasing on their own and sharing them is a blast. I still do it.

With apologies
Paul

If you propagate a patented rose for sale at your nursery, that is clearly a violation of the patent.

If you propagate a patented rose and sell 3 or 4 at the local farmer's market, just for fun, its still just as much of a violation.

If you propagate a patented rose and give one to a friend, its technically still a violation of the patent, but not many people (not even me) are going to sic the patent police on you. Discretion is important here; just don't make a lot of noise about the fact that you are doing this. It is a violation of the Terms of Service here on GardenWeb to publicly declare that you are, or intend on, sharing patented plant material.

If you propagate 20 plants of a patented rose and give one to every one of your friends, you are in a bit more of a gray area; clearly the patent owner is more obviously losing significant royalties and many would regard this as a less than benign activity.

So what it comes down to is this (in my opinion): if you propagate a patented rose and in any way make money from the activity, thats a clear violation of patent law and to be discouraged. If you propagate a couple for your own garden, or to give to a friend, that is a violation of patent law if you want to follow the law to the very letter, but very few people are going to look upon this as being a particularly heinous crime. You are getting into a gray area, but its not too gray yet. Making 20 copies to give to all of your friends is grayer still and most people will recognize it as infringing a bit too far into patent violation territory. If your activities are harming the creator of a rose by robbing them of more than a dollar or two of royalties, then its probably not something you should be doing.

As Paul Z. pointed out, the hybridizers who create the roses you love can only do so if the marketing of them pays for the hugely expensive research and development of new varieties. I can assure you that this is very costly and could not possibly be sustained without the revenue of royalties.

Paul B.

Paul, no worry, no apology needed. Paul B, your explanation makes a lot of sense. I was just taking the patent laws to extreme to see if it still made sense to not even be able to use extra plant material in your own yard. I don't think I even own very many patented plants.
Trading unpatented ones doesn't seem to me like a harmful thing to do to nurseries though..I can't picture it making much of a dent in sales. You could say that the Goodwill stores should consider how they are impacting the big department stores..sales are way up at Goodwill in our present economy. I am not sure if it is more moral to forego a good deal in favor of supporting business. But if the businesses all collapsed, we'd all be in sorry shape. Maybe it is enlightened self-interest to pay extra to keep businesses going. ( if you have extra)

I do hope the rose nurseries stay afloat.
Linda

I know a lot of nursery owners.
I've suggested people visit some of them for specific roses.

One nursery owner called me up with a "Thanks a lot" phone call. He does sell OGRs. Someone I sent to him seemed to really like the roses he offered. He sold her six different roses. He thought that she'd come back for more. He was really upset when she told him that she looked forward to propagating from the ones she'd just bought and sharing them with all of her friends after she made more for herself.
Frankly, he could use the money. He put a lot of work into those plants. He doesn't charge that much for each plant.
(This wasn't a nursery participating on here, just if you're wondering.)

No easy answers on this one, are they?

"she told him that she looked forward to propagating from the ones she'd just bought and sharing them with all of her friends after she made more for herself."

Sharing plants we propagate with our friends is a wonderful thing. There are many instances where this sharing process has saved some roses from certain extinction. But if everyone did what this person did (quoted above) then we would have half the number of specialist nurseries that we do today. As you say Ann, there are no easy answers. It kinda boils down to finding a balance between supporting small businesses and generating what we want for ourselves, for free. It comes down to the individual making a personal choice.

There are no easy answers but it is a good question to think about. I have traded cuttings and plants and know for certain that most of the people I've traded with continue to do a lot of plant buying from the nurseries. These are seriously addicted people who are not going to be satiated with a few plants traded! Many people who trade don't have a huge number of plants and will always turn to the nurseries for their large selections.

The example Ann gave could also apply to a nursery owner buying plants from another nursery owner. He/she might say, " I am going to propagate a lot of these plants and sell them and give you a bit of competition." Would that be a sorry way to treat the person he bought from? I don't think so. We all have to get our plants somewhere. Do most nursery owners dislike selling to other nurseries?
I question whether a small new nursery might be subjected to the same disfavor that a small time trader might get.

Keeping them in commerce might be better than just trading because the nursery owner is putting so much in to the whole thing, keeping obscure varieties available, educating people, etc. A private garden owner can also keep obscure varieties going, educate, etc. . When it comes to " BAD rose traders" spank spank ( unpatented) I just can't go there yet. I have been limiting my trades anyway for this important reason: a nursery owner is more likely to recognize disease and refuse to send a diseased plant. I have also seen nursery owners who may not have taken the time to look over a plant before mailing. I am treating some nursery bought plants with systemic soil drench today because some kind of white thready nymph fell from the leaves to the soil when it warmed up.

I think supporting a nursery with a big inventory is worthwhile because the huge inventory is such a vast effort to maintain, and it is such a resource to find them all in one place. And many of us like those people.

Melis, if you're still reading, I've been thinking that one unpatented plant you could trade for which has a lot of orange in it is Clementina Carbonnieri. Or you could buy it. It should do well in zone 8 and would not need spraying, while an orange Austin is likely to need spraying. You can see pictures of it at www.helpmefind.com/roses. You can do a search and then click on the photos tab.
Linda

Because it is even more complicated.

How about a small nursery finds and promotes a certain plant. It is truly a worthy plant, but not eligible to be covered under the plant patents.
They may even go to the personal expense of having it tested for assorted plant diseases and may even pay to have it cleaned up.
Is it then 'right' for someone to buy that plant and propagate it, knowing that they (as second seller) incurred no expense other than basic propagation? What if their selling so cuts into the market of the finder that it hurts their business?

How about the plants that are brought in from Europe at considerable expense? Not all imports take the first time, and those expenses have to be spread out. Does the importer have an expectation of enjoying profit from his imports?

Ann, that's another good point. Maybe any nursery owner should inform a nursery he/she is buying from that they are planning to propagate plants and ask if there are any on their want list that the seller would rather not be propagated. For example, I'd like Angel Face VID. It would be nice to offer the VID one. But if someone wants to be the exclusive seller I'd honor that regretfully.
I have bought unpatented plants which were recently bred but I don't propagate them because I know the breeder wouldn't like that. Thanks for bringing up the point about special expenses incurred for certain roses.
Linda

"I have bought unpatented plants which were recently bred but I don't propagate them because I know the breeder wouldn't like that."

The creators of new unpatented hybrids don't want to prevent people from propagating them for sale, they would simply like to be paid a royalty for distribution of their work. You should have some discussion about this with the hybridizer before assuming he/she does not wish to have their roses propagated and sold. Most breeders I know want to see their roses distributed!

Regards,
Paul