Even if you’re just considering saving seeds or dividing a perennial, check this basic guide to plant patents first.
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Saving seeds, dividing perennials, and rooting cuttings can be fun and cheap ways to expand your garden. But there can be legal reasons not to propagate some plants. While it's wise to err very far on the side of caution to avoid breaking the law, don't panic if you've ever propagated a plant. Most types of plants are legal to propagate, and those that aren't are usually clearly labeled. Maybe you've even noticed the statement “propagation strictly forbidden” on plant tags before. Here’s what you need to know to reproduce plants from your garden without worrying about whether it’s a crime.
Which Plants Are Illegal to Propagate
Just like an inventor can get a patent on innovative computer software, a plant breeder can get a patent on a unique plant. Patents and other intellectual property (IP) protections give the owner the right to control who can propagate their hybrids. There are three types of IP protections you need to watch out for in the garden: plant patents, utility patents, and Plant Variety Protection certificates. Look for them on your plants' tags, in nursery catalogs, on seed packets, or online.
All three usually last for 20 years before they expire. When they expire, the plant is legal to propagate. Take the Autumn Princess azalea patent as an example. It was applied for on March 17, 2000. It expired on the same day in 2020. If you bought Autumn Princess in 2016, you had to wait 4 years before you could legally root a cutting from it.
Just because a nursery tag says “propagation prohibited” doesn’t necessarily mean it’s true. Sometimes tags say that to discourage home growers without any legal basis. Likewise, sometimes a plant might have been protected by IP when the tag was printed but by the time you bought that plant, it may have expired. Sometimes IP is abandoned or invalidated before 20 years is over.
The only way to know for sure is to look up the patent or PVP itself. You should always save your nursery tags in a handy spot so that you can easily get the IP information to check the status. Google Patents has complete patents with the day they expired or the day they are projected to expire. The USDA PVP site has the same information for PVPs. You can also just type the IP number into a search engine.
If you don’t want to worry about plant IP at all, it’s very easy for gardeners to totally avoid. Heirloom plants and naturally occurring species cannot be restricted by IP.
Types of Plant IP
According to James Myers, a plant hybridizer and professor at Oregon State University, plant IP is always evolving. “It’s constantly being rewritten through legal cases,” he says. But there are some major differences that home gardeners should know about between the following types of plant IP.
These are the most common. They prohibit you from any kind of asexual propagation (AKA vegetative propagation). Translation: you cannot divide that overgrown perennial, root cuttings, or layer branches if the plant is protected by a plant patent. Basically, the only legal way to reproduce a plant with this type of patent is by seed. But Myers says that plant patents don’t actually guarantee the right to grow from seed. They just don’t prohibit it. He suggests that in the future someone could file a lawsuit that argues that plant patents also prohibit seed saving.
Plant patent numbers begin with “USPP.” There are a few common variations on tags like “PP,” “US Plant Patent,” or “Plant Patent #.” You may see “PPAF” or “plant patent applied for.”
Utility patents are ultra restrictive. They prohibit every type of propagation down to high-tech genetic modification that might copy protected genes. You’re not as likely to come across them among your garden plants as you are plant patents or PVPS, but you might see them on more recent tomato hybrids, for example. You can tell them from plant patents just by looking at their numbers. Plant patents and utility patents both begin with “US” but utility patents don’t have a “PP.”
Plant Variety Protection certificates
PVPs are best known for prohibiting propagating certified plants by seed. But in 2019 they were extended to asexually propagated plants, probably, according to Myers, because of the legalization of hemp. PVPs currently have an exemption that allows farmers to save seed or asexually propagate for their own use, as long as they don’t sell it or share it. This exemption is usually considered to extend to everyone for their own use at home. But the exemption may not last.
“One of the desires of companies would be to eliminate breeders’ and farmers’ exemptions,” says Myers. “And there is a possibility that this would happen if the law for PVP were opened for legislative reform.”
Trees and vines with PVPS are protected for 25 years, rather than the current 20-year plant IP lifetime.
Why You Should Care About Plant IP
Plant IP protections come into play more when plants are commercially propagated. But home gardeners should be aware of and respect them too. The majority of plant IP goes to unique new plants that were the result of significant time, investment, and expertise, just like any other patentable invention. A lot of the most exciting new plants were produced by experts with doctorates who spent decades working on them. To get an idea of the commitment, a hybridizer might raise 30,000 seedlings and evaluate them for 10 years for every one plant they patent.
Myers has produced important crops at Oregon State. One of his most famous lines features the first culinary tomatoes with deep purple pigment ('Midnight Roma' pictured above). “The PVPs are the only revenue stream that I have for the Indigo tomatoes,” says Myers. “I’m critical of plant IP, but it’s been important for making my work possible.”
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