Patents relating to Plant Cloning by Joseph Parish

So you just acquired some beautiful variegated Hostas and are considering propagating them for resale at the local flea market. Perhaps you should think this decision over carefully. Chances are very good that those Hostas are more then likely protected by some sort of copyright or patent.

When cloning any sort of plant one should be careful as to whether the plant in question is a nursery plant that has been legally patented or trademarked. Usually if you take a close look at the plant department in your local agricultural store you will notice a vast number of plants with labels which say “patented” or “trademarked”. At first you just might think this to be one of the silliest things you have ever seen, however think again.

The purpose of patenting plants is to encourage creative designs within the horticulture industry. For many years the plant industries has struggled with issues relating to setting appropriate prices for their research and development efforts. It is believed that the process of trade marking company’s plants provided a greater value for those plants in the marketplace. With this monetary thought in mind the breeders and raisers of plants will expend all efforts towards creating the perfect plant. Without this patent protection it is likely that there would be no new and novel innovation seen within the horticulture industry.

The process for patenting a specific plant is similar to that used for any other sort of item, likewise the rewards are similar. Each time a consumer purchases a patented plant a royalty is provided to the creator of the said plant.

Patenting is a rather costly venture at best and it is likely that one could spend thousands of dollars in an effort to protect their interest. Even then there is no guarantee the consumer will like the particular variety offered thus it is possible that the company will not break even for at least 20 years.

Like any other type of patent, the plant patents prevent anyone from reproducing the species legally unless the proper royalties are paid. These methods of reproduction include cuttings as well as tissue culture germination. You may be wondering how you can determine if a plant is patented. First look at the tag and see if you find a patent number on it. Keep in mind that if the plant is identified as patented you must obtain a license in order to reproduce it.

There is a big difference between a patent and a trademark. A trademark tends to aid the consumer in identifying specific varieties associated with a certain company. This is similar to what the “Big Mac” is to McDonald’s. A trademark only protects the plant’s name and provides no protection what so ever for the cultivar itself.

An interesting side note here is that if you happen to purchase a plant that is trademarked only you may propagate it asexually by cuttings. In fact you are even free to sell the plants but you can not call the plants by the trademarked name.

Although the Patent Office estimates that appropriately 60 percent of the new plants each year ever become patented, you would be best served to approach these issues with a delicate pair of gloves. Patent infringement can become very tacky and drag on for any number of years. Caution is the key word here.

Copyright @2010 Joseph Parish