I believe the Hosta Finder lists if the plant is under patent. i.e. Hosta 'Touch of Class' PP#13,080

back issues of the journal can be bought .. i think steve greene handles it.. i suggest you look thru the back pages of any journal for his email .....

one would think that a true species would come true from seed.. if so.. why pay for tC ...

there is a scientific journal .... check the library for any reference to the HYBRIDIZER CLUB.. and contact one of those folks ... i don't know if back issues available ...

ken

"one would think that a true species would come true from seed.. if so.. why pay for tC ..."

If you can control the cross carefully, very carefully then is will be close but all specie having a variety of genes so it's a little like people. When a new or apparent new strain of specie comes to a breeding program then a new gene pool begins.

TC is a division of the one plant that still varies but the variation is far less.

I wonder if a species can be patented and if so how do you find the paten's file? I a paten is granted to a species it simply means what? Should I stop asking questions. Ken you should know this stuff this is right up your alley. Does a registered hosta imply a paten or an application has been filed for one.

Are there any large nurseries which are public companys?

Here's a couple links to Patents applied for

US Patent & Trademark Office

Different Format

While I am by no means a legal expert, common sense tells me that patents can only be granted for something unique you developed yourself.

A species is something found in nature, not something you develop yourself, so a patent can never be granted to a plant that has been determined to be a true species.

Patents would therefor only be granted to a hybrid you developed.

And a plant that is patented cannot be reproduced asexually for profit....or have they changed that law?
It used to be so at any rate.
Linda C

>>And a plant that is patented cannot be reproduced asexually for profit....or have they changed that law?
It used to be so at any rate.
Linda C That is correct. Only the holder of the patent can reproduce the variety or hybrid (notice I said variety, not species)for sale, unless permission is granted from said patent holder.

Joel

I believe the mandatory tags accompanying a Patented (or PPAF) plant states: "Asexual reproduction Prohibited". That is all inclusive, you aren't allowed to divide the plant even for your own use, without permission from the Patent Holder or their Assignee(s). Sure thing!
How do you avoid breaking the law? I have a simple solution, that works for me. I never buy Patened plants!
There are over 3300 Registered Hosta cultivars and many more that are NR. I have always been able to find ones that please me, that aren't Patented.
Rb

It's only illegal if you sell the divisions.
Linda C

Is it not true that hostas by nature need to be divided to maintain the over all vigor and health and to maintain the integrity of the inherent traits endemic to said cultivar. I believe the asexual division of a cultivar with a plant patent is perfectly legal if it is for one own personal use and in the nature of good husbandry. The interpretation of the law is for judiciary,to read something into such a broad and sweeping statement as, no asexual reproduction; should not apply to any non-business entity. The Plant Patent provides legal status and protections within the confines of a business venture. If there is no business venture, how can this law apply to a non-business venture? To come to such a conclusion without a judiciary statement on this particular topic would be without merit. The law is to prevent copyright infringements with out due compensation to the holder of said rights. If you separate your hostas that are Patented with the intent to sell them on eBay should be considered a business venture which should be prohibited with out explicit endorsements from the holder of the patent. With out case law speaking to this very issue, can grandma separate her hostas, I would think it is a non-issue. So lets nullify this premise as it is with out a valid statement and there for no argument is applicable.
Sorry if I sound like a Pro, but this is the only way I can think this out and put it into words. I didn't mean to insult grandmothers it was use to dramatize the obscurity of this issue. I would like to thank all of the Grandmothers for their understanding, next time I will use Grandpa, but he might get locked up if you know what I mean.

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.

So this issue may be more polemical then I thought. 101 seeming only to state that a plant can be patented, then it jumps to 102 where is the rest of the argument? I don't think a hosta can be considered a tuberous plant, that may be a question for Schmid but he does not take my emails, I wonder why?

Maybe I need to find more interesting stuff like how to grow hostas under LED lighting.

Don't think they've grown hostas but they have grown other plants under LED lights..

Growing Under LED's

Deshima. Check the link....this could keep you busy.
Linda C