Here is my firm opinion:

Patent is a patent is a patent!!!
It's a legal form to protect someone's rights for his/her creation.
Doesn't matter if it's a computer chip or plant.
It's an intellectual property belonging to someone.
Years of R&D with unknown end result and very high rate of failures should bear the monetary benefits for the patent holder. And nothing wrong with that, IMO.
Therefore, I personally think that it's simply unethical to propagate patented plants INTENTIONALY even if propagator will receive no financial benefits by doing so and know he will not be caught on his/her act.

Validity of those patents for plants that we seeing flooding the market in a recent years is an another issue and I'm not happy with that, but for as long as patent is granted rules should be applied and followed. You may not to like the law, but you have to follow the law for as long it's in force.

I also went looking for info on this after reading that other thread. Wikipedia has only a "stub" and nothing about the actual meaning of the plant patent law. I found this on
http://www.uspto.gov/web/offices/pac/plant:

>Grant of a patent for a plant precludes others from asexually reproducing or selling or using the patented plant.

The ORs make this seem pretty strange! Taken literally, it says we can't USE patented plants, although I suppose we're granted this right indirectly from the patent holder when we buy the plant from a vendor who's paid for the privilege of selling it to us. By the way it does not apply to tubers, or to "sports" - sports can be patented separately.

And, at google books, I found this bit from a book, Flower Breeding and Genetics, by Neil O. Anderson: the term PPAF has no legal effect.

Most of the information on line, at government sites, is aimed at people trying to get patents, not at people with patented plants in their gardens who are heading for plant swaps.

I also read that trademarks don't prevent you from doing anything except marketing cuttings and divisions with the trademarked name. The divisions can be sold (or given away) with the complete botanic name, which does not include the trademark.

I think that it's fine to reproduce all of these plants, as long as you're not setting up shop and selling them, but I can see how others might feel differently about it. There have been some really heated discussions about this on the propagation forum.

Nan,
'I think that it's fine to reproduce all of these plants, as long as you're not setting up shop and selling them, but I can see how others might feel differently about it.'

As I understand, we are not talking about legal implications, just about moral things, right?

Here is a hypothetical (or may be not) situation:
Someone created the garden you heard good words about and want to visit it. Finally you are there and standing in the front of the open gate ready to enter. Then you see a box with a sign "Entry $5". Nobody is watching you and no one later will tell you anything since there is no tickets to prove you paid for the entry.
I'm sure you'll not debate too long of what to do. You'll either pay and walk in or just walk away, but not the third way, right?
I don't see any moral differences between 'no-pay entry' and distributing and/or obtaining patented plants without compensating the owner for his expences and troubles.

Yes, I agree, George, you're right. I see the line as a little fuzzier, though, than the hypothetical garden tour (which I'd solve by peering over the fence and muttering loudly until the owners agreed to take a check).

For example, what do you think about divisions of patented plants - is it ok to replant them in your own garden, or do they need to be composted? I've just taken several rose cuttings, and am about to dig an offshoot of a hydrangea. Neither of these is patented, and I'm planning to use the new plants in my own garden, but I might have a hard time deciding what to do if either was patented, especially the hydrangea, since the mother plant will look much better without the side clump.

I'm not really sure that I could say with certainty which plants in my garden are patented, now that I think about it.

I don't think there is a solid line in a sand that could be drawn and I could answer your question for myself only, what I would do.
First, I wouldn't hesitate to propagate and use patented plants for MY OWN USE simply because I ALREADY paid my royalties to patentholder. Addmittedly such position most likely is not legaly perfect and it's a somewhat grey area, I guess, but at least I'm in a moral comfort with it.
Second, like you, I can't say with certainty which plants in my garden are patented and which are not. Therefore I might UNINTENTIONALY reproduce and distribute some patented plants, but by doing so I still do not break my moral reservations cause I don't know I broke them :-)

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?

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?

I suspect the point is that it's not about the public at all, but rather about companies that propagate and sell plants for profit. I suspect that the nurseries are quite aware that they'll get sued if they propagate and sell a patented plant. I suspect that the sellers of patented plants care little whether you and I are sharing cuttings amongst ourselves.

Wow, this is a great thread! I respect and understand the need for patents but I also see a need for reasoning here. I purchased 3 Endless Summer Hydrangeas off the bargain table at the depot and they were in horrible shape. Some watering and pruning of broken branches made them look great. I planted the broken branches, got more plants. Put some in my garden and gave one to my neighbor. Was that wrong? I don't think so. We regularly share plants. BTW, he enjoyed that bush so much he PURCHASED 2 more this year. Gardeners are nurturers, if a branch breaks it is innate to try to root it! /Abi

OK, Abi, I'm calling the FBI. You're busted!

It seems we all have to draw the "line" where we're most comfortable with it. To be honest, I grow so few patented plants that I don't think about it. ES, for example is not my favorite hydrangea (no offence - we can grow a lot more types of them in zone 7 than in zone 6).

I completely understand, though, if someone says they can't share a cutting of a patented plant, even without money changing hands.

Building on Katy's recording industry example, propagating ES hydrangeas would be a little like me asking my sister to record Gray Gardens for me, since I don't get HBO. (Does anyone have a copy? I heard it was great.) LOL
- DtD

Gee, I was in Bridgeport on Sunday pickng up a coldframe, and saw this woman on a corner with a trenchcoat, and when she opened it, it looked like there were some kind of plants in there, tucked in the inner pockets of the coat.

Abi, was that you? Your shades and the hat pulled down low kept me from recognizing you if it was. Sorry I didn't stop to say hi....

:)
Dee

Gulp, I might have been visiting neighbors. /Abi

Interesting thread... especially with the CT plant swap coming up! Spring surveying has revealed a nicely SELF-rooted branch of one of my Blue Billow hydrangeas, and a nicely SELF-rooted branch of my Dart's Gold Common Ninebark. Now I'm sure I CAN find a place for these in my garden somewhere... but if I couldn't, would I be morally compelled to throw them away, compost them? I didn't propagrate them ... they propagated themselves! (I think I need to report them to the patent police, don't you? I will know what happened if I go out to the garden one morning and my Ninebark is gone, just drag marks in the dirt, signs of a violent struggle...)

Seriously, I can see that the patent issue is designed to keep home gardeners from deliberately going out and starting little "cottage" (garden) industries selling plants they have propagated from a purchased parent plant. But I would assume if a plant is silly enough to go and root itself in my garden, then all bets are off. If growers want to limit distribution with patents, they need to develop cultivars that will not root themselves... ;)