BlogSmall growers
Plant patents: what you can and can't propagate
Most growers learn to propagate long before they hear about plant patents, and taking a cutting from a good plant feels like the most natural thing in the world. For many popular varieties it is also against the law, whether you sell the result, give it away or keep it. Small growers are not exempt, and finding out after a season of propagating can leave a bench of plants you cannot sell. This is a guide to the rules, not legal advice, and a patent attorney or your extension service can help with a particular case.
What a plant patent stops you doing
A plant patent covers a new and distinct variety reproduced asexually, by cuttings, grafting, division and the like. The United States Patent and Trademark Office says it lasts 20 years from the date the application was filed, and the law gives the owner the right to stop others from asexually reproducing the plant and from using, offering or selling a plant reproduced that way. There is no exception for small growers or for plants you paid for. The University of Tennessee's guide to plant patents for the green industry says unauthorised asexual reproduction is infringement even when it is unintentional, and gives the example that handing out rooted suckers of patented brambles counts.
Your own garden is not a safe harbour either. Patent law has no exception for private use, and a University of Florida extension article says you may not take a cutting to start a new plant "even if it is only for yourself". That differs from the Plant Variety Protection certificates the USDA issues, which do allow propagation for private, non-commercial use.
How to tell whether a plant is protected
Start with the tag. According to the Tennessee guide, a patented plant's label usually carries PP and a number, for plant patent, or PPAF, for plant patent applied for. Buying as a nursery, the paperwork tells you as well, because University of Florida extension notes that nurseries growing patented plants pay the patent holder a royalty on every plant. When the tag is gone or you are unsure, ask the supplier, which is the Tennessee guide's own advice, or look the number up in the USPTO's Patent Public Search. A plant patent carries no maintenance fee, so it does not lapse early, and it is safest to assume it runs its full term.
Names, seed and expired patents
A trademark is a different thing. Clemson's Home and Garden Information Center explains that a trademark protects the brand name and not the plant, and a federal court held in 2006 that variety names themselves are generic. So when a patent expires and the plant enters the public domain, the trademarked name can still belong to someone. The Tennessee guide's example is the rose 'Ausbord', which others could sell after its patent expired in 2008, under that cultivar name but not under the trademark Gertrude Jekyll.
Seed is treated differently. Growing a patented plant from seed is not asexual reproduction, and the Tennessee guide says it is not infringement in itself, though it warns that seedlings very close to the patented parent could still invite a claim.
Propagating patented plants the right way
If a patented variety is worth growing, buy it from a licensed propagator, or ask the patent holder about a licence to propagate it yourself, which usually means a royalty on every plant. Keep the invoices and tags, because they show where each plant came from. And when a variety is old enough that its patent has run out, it is yours to propagate, as long as it goes out under its cultivar name.