Plant Patents... What's the deal?

13 years ago

Hope I am posting this in the right place, but...

Today I potted a few cuttings of a Lantana plant that I bought at a local nursery. The owner told me the name of the specific variety and I asked if they were easy enough to root from cuttings and he told me that they were very easy to root.

I'm a CNA at a nursing home and the residents love it when I bring a flat of plants to them to plant in the garden, and these colorful Lantana are ideal for our hot and dry climate. Also being a college student on a budget it's always good to be able to propagate plants to fill out the yard...

... WOW! Was I wrong! I went online to find out how long it takes to get these cuttings to root and I discover that I just infringed on a patent and that it's prohibited by law??

I must confess I haven't thrown them out yet... but I don't want to be paranoid every time I hear a helicopter flying overhead!

Anyhow... what should I do?

Do I have to throw them out?

Am I the only one of the opinion that patenting a PLANT is ridiculous? Whether it be for selling at markets, or to give as gifts or even to not be able to take cuttings at ALL to put in your own yard? I didn't know this was real until today.

Thoughts anyone?

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Comments (4)

fruitgirl
13 years ago
No, patenting a plant is not at all ridiculous. It take a whole lot of money to develop and release a new plant cultivar, and the only way for the inventor of that new plant to get that money back is to protect it through a patent. What you may not realize is that for each of those patented lantana plants that is sold, there's a royalty tacked on that goes back to the patent holder. If there were no patent, anybody could sell it (you have to be licensed to sell patented plants) and the patent holder wouldn't be able to recoup their investment. And then there would be no financial incentive to create new plant cultivars.

Why is it any different to patent a plant than it is to patent a piece of electronic equipment or a new pharmaceutical? Sure, plants are living organisms, but it takes money to make new types of plants just like it takes money to come up with new gadgets or new cancer drugs.

Anyway, it's probably ok to take those plants into the nursing home. The patent is really concerned with plants being sold...and besides, the patent holder isn't going to sue you for propagating a flat. Now, if you propagated a few thousand, and tried to sell them, then you might find yourself being sued.
jason83
Original Author
13 years ago
Hi fruitgirl! Thank you for your perspective on this one - it makes sense, though I wouldn't think this could be compared to electronics or pharmaceuticals.

In fact, one of the main reasons the FDA won't touch herbal supplements and homeopathic remedies is because the plant materials and plants themselves cannot be patented in that way. Which, to me would be the wrong reason if there is a specific one that could genuinely help people.

Hybridizing different flowers for color or fragrance for the sake of money and monopoly is a concept that seems so foreign to me...

BUT... I can see it from your point of view and suppose if I went through the time and expense of trying to create a new cultivar of a plant it would be nice to get my investment back some how.. I do still think it's somewhat silly though.
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Are you a lawyer murky? You don't have to be a lawyer to understand you have no obligation to follow a contract you didn't sign. And if the tree is public domain, you can grow it. So yeah you're free and clear. Drew...I addressed that to murky, and was not being a wise a** , I was serious. He sounded as though he may have some legal background. Drew...if you didn't sign the contract you couldn't legally have the plant material. Our discussion had turned to syndicated varieties which are not in the public domain. Again...the reference was Sanpadragon and Rubyfrost...Cornell's latest releases. Are we even sure that these syndicated varieties are handled in the same way? Is it required that they be patented or is the syndication itself the legal protection? Sounds like they probably are since Olpea pointed out that Pink Lady began as a club apple...I didn't know that. I thought only the name "pink lady" was the deal there...that the apple Cripp's Pink pre-existed it. I do know they are sold under both names now in the supermarkets.
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"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.
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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 Â§ 101 to plants. In addition to Â§ 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 Â§ 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. Â§ 101." So, whether or not a hosta is a tuber is a significant question with regard to enforcability of patent claims by patent-holders.
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You are ok on both plans. You bought the seed. They sold you the seed to grow tomatoes. You can sell the fruit as Burpee Big Boy. What you can't do is keep some seeds from the fruit you grew and sell the seed as Burpee Big Boy tomato seed, nor can you keep seed from those plants and grow them and sell the fruit as Burpee Big Boy tomatoes. In order to do that you need to buy new seed directly from Burpee. They want you to buy your Big Boy seed from them everytime you want to grow Big Boy. Now, what you can do is save seed from your tomatoes and grow those plants and harvest that fruit and sell it as Round Red Tomatoes or any other name you can think up but you can't call them Burpee Big Boy or even just Big Boy unless you bought the seed from Burpee. You can't even hint that your homegrown-from-home-collected-seed tomatoes have anything to do with Burpee's Big Boy. At least not without their blessing. The Azalea is an un named cultivar. Take cuttings and sell them under any name you wish. You cannot look up a name in a book with pictures of azaleas and find one that looks like yours and call yours that name. You don't know what the bushes name is. Don't guess, don't assume, just name it whatever you like. You cannot claim to know what its name is. You cannot even suggest that your azalea "looks a lot like - Azalea X". Just give it your own name and be done with it. Its like someone with a black dog claiming that its a Black Lab just because it looks like a black lab. If it isn't registered with papers stating that it is a Black Labrador Retriever from a reputable dog breeder - then it is just a big black dog. There is nothing illegal about selling big black dog puppies or big round red tomatoes, you just can't claim that they are Burpee's Big Boy unless you bought the seed from Burpee's.
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mistercross
13 years ago
This type of thing is all around us.

For example, the song "Happy Birthday" is still under copyright. Someone owns the string of words, and the string of musical notes. Don't worry. It is legal to sing it at your next birthday, but if you sing it on TV or in a movie without paying, their lawyers will come after you.

When Intel came out with the '286, the '386, and the '486 CPU chips then other companies like AMD, Cyrix, and others, came out with chips labeled with exactly the same part number. And their chips were cheaper.

So Intel named their next chip "Pentium" instead of '586. Since Intel owned that string of 7 letters none of the other companies could use it. This simple act put all of the other companies out of the CPU business, except for AMD.

But don't worry, you can still name your dog or your child Pentium, if you want.

Even colors can be protected. I haven't looked it up, but I'm pretty sure you can't paint your home improvement store Home Depot Orange, or put Golden Arches on the door of your restaurant.

Almost anything can be protected, to keep other businesses at bay. They can even protect plants, genes, and so forth, for a period of time. But the copyright for "Happy Birthday" is set to expire in 2030. Then, even though someone invented it, it will be public domain, and they can't stop anyone who wants to, from using it for any purpose they want.

Everything goes into the public domain eventually.
keking
13 years ago
One of the ironies of the Plant Patent Act was that the first plant patent issued (Rose 'New Dawn') was for a reblooming sport of 'Dr. W. Van Fleet' that grew up from the root of a plant that had been trampled. Not much work involved in "developing" that one. In fact, during the early years following the P.P. Act, many rose sports were patented, even though the originals might not have been.

Even before plant patents, breeders could copyright the names of their productions. Just today I came across a list of seed-grown plants that Luther Burbank copyrighted in 1915. Or maybe he was copyrighting the seed packets rather than the seeds.

Actually, the Patent Office was registering strains of corn (maize) back in the 19th century, but I don't know what sort of protection this gave. Anderson and Brown mentioned this fact without detail.

Karl

Here is a link that might be useful: Origin of Corn Belt Maize and Its Genetic Significance

Plant Patents... What's the deal?

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fruitgirl

jason83
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Plant Patents... What's the deal?

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fruitgirl

jason83Original Author

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jason83
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