Patents and trademarks

Michael Homick
Thu, 21 Jun 2018 11:33:29 PDT
From the patent documentation stating the patent only applies to original
plant and mutations/sports would not apply, does that mean if you induced a
plant to become a tetraploid / aneuploid of the original you could sell it
All the best, Michael

On Thu, Jun 21, 2018 at 11:13 AM, Tony Avent <> wrote:

> All;
> Actually, Plant Patents are more broad in their scope..they cover all
> clonal propagation, not just commercial propagation.  The idea of a patent
> is to promote invention, and to reward inventors. In exchange for fully
> disclosing how the new plant was produced, inventors are granted 20 years
> of propagation protection for their new plant.  Sadly, many applicants lie
> on the patent application, which is Federal crime.  Also, in an attempt to
> gain protection outside of the 20 year legal window, people will trademark
> the plant or name of the plant.  This is highly illegal, since no product
> or the name of any product may be trademarked.  Trademarks can only be used
> to designate origin of the product.  Patents and trademarks are not the
> problem.  That would be like saying cars or alcohol should be banned
> because some people abuse it. The problem is simply unscrupulous people who
> abuse the system.  Below are two sections from the US Patent and Trademark
> office that may answer other questions.
> If you have more questions on the illegal use of trademarks, you can find
> my article on the subject at
> Rights Conveyed by a Plant Patent
> Grant of a plant patent precludes others from asexually reproducing,
> selling, offering for sale, or using the patented plant or any of its parts
> in the United States or importing them into the United States. A plant
> patent is regarded as limited to one plant, or genome. A plant derived from
> a sport or a mutant is unlikely of the same genotype as the original plant,
> and thus would not be covered by the plant patent to the original plant.
> Such plant derived from a sport or such mutant may itself be protected
> under a separate plant patent, subject to meeting the requirements of
> patentability. A plant patent expires 20 years from the filing date of the
> patent application. As with utility patents, when the plant patent expires,
> the subject matter of the patent is in the public domain.
> Provisions and Limitations
> Patents to plants, which are stable and reproduced by asexual
> reproduction, and not a potato or other edible tuber reproduced plant, are
> provided for by Title 35 United States Code, Section 161 which states:
> "Whoever invents or discovers and asexually reproduces any distinct and
> new variety of plant, including cultivated sports, mutants, hybrids, and
> newly found seedlings, other than a tuber propagated plant or a plant found
> in an uncultivated state, may obtain a patent therefor, subject to the
> conditions and requirements of this title.
> The provisions of this title relating to patents for inventions shall
> apply to patents for plants, except as otherwise provided."
> As noted in the last paragraph of the statute, the plant patent must also
> satisfy the general requirements of patentability. The subject matter of
> the application would be a plant which is developed or discovered by the
> inventor, and which has been found stable by asexual reproduction. To be
> patentable, it is also required:
> ·         That the plant was invented or discovered in a cultivated state,
> and asexually reproduced.
> ·         That the plant is not a plant which is excluded by statute,
> where the part of the plant used for asexual reproduction is not a tuber
> food part, as with potato or Jerusalem artichoke;
> ·         That the inventor named for a plant patent application must be
> the person who actually invented the claimed plant, i.e., discovered or
> developed and identified or isolated, and asexually reproduced the plant;
> ·         That the plant has not been patented, in public use, on sale, or
> otherwise available to the public prior to the effective filing date of the
> patent application with certain exceptions;
> ·         That the plant has not been described in a U.S. patent or
> published patent application with certain exceptions;
> ·         That the plant be shown to differ from known, related plants by
> at least one distinguishing characteristic, which is more than a difference
> caused by growing conditions or fertility levels, etc.; and
> ·         That the invention would not have been obvious to one having
> ordinary skill in the art as of the effective filing date of the claimed
> plant invention.
> Tony Avent
> Proprietor
> Juniper Level Botanic Garden<>
> and Plant Delights Nursery<>
> Ph 919.772.4794/fx 919.772.4752
> 9241 Sauls Road, Raleigh, North Carolina  27603  USA
> USDA Zone 7b/Winter 0-5 F/Summer 95-105F
> "Preserving, Studying, Propagating, and Sharing the World’s Flora”
> [plant-delights-logo]
> Since 1988, Plant Delights Nursery is THE Source for unique, rare and
> native perennial plants.
> This message and its contents are confidential. If you received this
> message in error, do not use or rely upon it. Instead, please inform the
> sender and then delete it. Thank you.
> From: pbs [] On Behalf Of
> Jo&Greg
> Sent: Thursday, June 21, 2018 12:43 PM
> To: 'Pacific Bulb Society' <>
> Subject: Re: [pbs] Question regarding commercial advertising
> Perhaps a note or two regarding patented plants may help. My comments come
> from my experience with publishing, and copyright info in both USA and
> Canada ... copyright is slightly different yet using the same underlying
> principles as a patent.
> "Resale" and "propagation" and "commercial" all refer to for-profit
> business. Non-profit organizations can offer books, plants, seed, etc., for
> sale without crossing copyright -- and as far as I've found out -- patent
> regulations. Plant patents are also legally suspect. You cannot patent a
> recipe or technique and the horrible Monsanto cases against the grain
> farmers aside, some feel the change in the plant is more like a recipe
> shift than something new or unique (the DNA is not fundamentally changed),
> and natural self-sowing or seed drift from natural sources are outside the
> purview of an intent to retail a product. That said, plants can at present
> be patented.
> So, I'd go ahead and have that plant sale and seed swap. And remember,
> though we are not a group of veggies farmers, when it comes to Big Hort:
> "Control my food, control my politics, control distribution, control my
> politics." Just my old-hippie-somewhat-anarchistic opinion.
> Jo Canning
> Vancouver Island, Canada
> -----Original Message-----
> From: pbs <><mailto:
>> On Behalf Of Jan Jeddeloh
> Sent: Wednesday, June 20, 2018 4:10 PM
> To: Pacific Bulb Society <><mailto:
> Subject: Re: [pbs] Question regarding commercial advertising
> While we’re griping about Big Horticulture I’d like to add my gripe about
> patented plants. I’ve been stung too often by patented pretty faces and
> have learned that a patent does not necessarily reflect the value or
> grow-ability of the plant, although it seems like it ought to. Too often
> big nurseries patent every tiny variation and rush the plant to market.
> Sometimes it appears they apply for a patent just to lock up the market for
> a year or two and then stop producing the plant once the word gets out that
> it’s not a good doer. You go to the nursery, are smitten with the pretty
> face, bring home your new plant whereupon it promptly dies. I’ve had this
> experience several times. And don’t get me started on the million heucheras
> or coneflowers out there. They are sold as perennials but most have an
> annual life in your normal, less than perfect home garden. You know, the
> home garden that does not have the mythical well drained, evenly moist soil.
> Patented plant are also becoming a problem for plant society plant sales.
> I organize our NARGS chapter participation in the Hortlandia sale and we
> have to watch that we don’t offer patented plants. As more and more plants
> are patented it will become harder to find plants we can propagate. Yes
> growing from seed it great but many of our members want to donate divisions
> and cutting grown plants. Plant tags get lost and it would be very easy to
> inadvertently offer a patented plant for sale.
> I realize plant breeders want to get some kind of return from their
> investment of time and money but it shouldn’t be too much to ask that the
> plants be good doers and truly unique. They should also be adequately
> trailed. One or two years is just not enough. I have found a couple of
> patented plants that are worth growing. Geranium “Roxanne” blooms all
> summer, does not spit seed all over and is tough. Salvia “Amistad”, while
> tender, puts on a great summer show and is much beloved by bees and
> hummingbirds. It also seems rather silly to patent plants that will self
> propagated. If it’s going to form a big clump you can easily hack apart
> gardeners are going to share it around. This takes no real skill. If you
> want to patent a plant it ought to require a bit of skill to propagate or
> you will lose the battle of controlling its propagation.
> To bring this back around to bulbs does anyone know of any patented bulbs?
> I know Terra Nova at one point had applied for a patent on a Cyclamen coum
> selection with a Christmas tree marking on the leaves. I wonder if this was
> denied because it wouldn’t be hard to find look a likes in many groups of
> coum seedlings. It’s not in their current catalog.
> Jan Jeddeloh
> > On Jun 20, 2018, at 9:59 AM, Jane McGary <><
>> wrote:
> >
> > I've been purchasing plants and bulbs for about 35 years now. I'm
> fortunate to live in Clackamas County, Oregon, which has more nurseries
> than any other US county, so "local" can mean anything from a daphne at the
> farmers' market to a viburnum from the big Monrovia fields on the other
> side of the river. I buy some unusual cultivars and rooted cuttings for
> cutflowers by mail order, mostly from specialty nurseries. Most years I
> obtain some commercial bulbs for planting out in front of the house --
> daffodils to distract the bulb fly from the good ones in back, anemones and
> crocuses for the bulb lawn, etc. Almost all of my bulb "collection" has
> been grown from seed.
> >
> > I agree with Robin that there's false advertising by large commercial
> nurseries, but small ones do so as well, especially in exaggerating
> cold-hardiness. They may not mean to, but if you're growing plants on an
> island you don't have the same conditions as most of your customers who
> live 150 km or more inland. Conversely, nurseries in colder areas who keep
> all their stock in greenhouses may produce plants that are hard to
> acclimate to outdoor conditions anywhere. Growing your own from seed is
> likely to result in losses, but the survivors will be easier to keep, and
> much cheaper.
> >
> > Two years ago I had the experience Ellen mentions of buying a shrub that
> had been bulked up by keeping two cuttings in one pot, but I got it at the
> farmers' market and the grower told me about it. It's a hybrid daphne; I
> was able to disentangle the root systems, potted them separately for a
> couple of months before planting out, and now have two very fine shrubs.
> This spring I went on a spending spree on Dianthus cultivars. One nursery
> sent me excellent plants, but another's plants had been in their pots far
> too long (I repotted them and waited until they recovered to plant them
> out). I almost never put a purchased plant into the garden the day after I
> get it. For one thing, you have to watch them for disease.
> >
> > As for bulbs that fail, it helps to understand the growth cycles,
> natural habitats, and structure of the particular species and genera. Bulbs
> with strong tunics, such as tulips, can stand dry storage much better than
> those without tunics, such as most Fritillaria. A species native to rocky
> desert will survive storage better than one native to river meadows. A
> species native to the alpine zone may not flourish without a long winter
> dormancy (hence the plants "hardy in Denver" that can't be grown in lowland
> gardens). It is also instructive to learn how commercial bulbs are grown
> and processed in the Netherlands, where they can be grown in sand, heavily
> fertilized, protected from predators, lifted and kept in warehouses
> controlled for temperature and humidity, and exported in advantageous
> condition. After a month at Home Depot and transfer to a home garden,
> they'll likely perform for a year but that may be the limit of their
> adaptability. Moreover, controlled conditions can suppress the activity of
> viruses, which may resurface in the home garden; that's why all my tulips
> are grown from seed, and I buy lily bulbs only from The Lily Garden, which
> I trust to provide clean stock.
> >
> > So read, read, read, and be prepared to lose some plants anyway. You can
> identify an experienced gardener by their possession of a big bag of
> plantless labels.
> >
> > Jane McGary
> >
> > Portland, Oregon, USA
> >
> >
> > _______________________________________________
> > pbs mailing list
> ><
> >
> >…
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