Patents and trademarks

Tony Avent
Thu, 21 Jun 2018 11:49:50 PDT
Yes, if you change the ploidy, the plant would be considered different and would not be covered by a Plant Patent.  Be aware, however, that just because you are legally in the right doesn’t mean you won’t get sued…especially if you run up on an aggressive firm with deep pockets.  It only means you should win if the case ever gets to court. In most cases, this is probably not a button that you want to push.

This is also why most people don’t challenge obviously illegal trademarks.  By the time you get to court, most litigants have already spent large sums of money on their defense, and find that making a legal point isn’t worth the money. I have little doubt that the Coca-Cola trademark would not hold up in a trademark suit, but you can bet it would cost millions to find out.

Tony Avent
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”

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 Michael Homick
Sent: Thursday, June 21, 2018 2:33 PM
To: Pacific Bulb Society <>
Subject: Re: [pbs] Patents and trademarks

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:
<mailto:%0b>>><> 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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