I just picked up a Lavender (Lavandula angustifolia 'Lavang 21') that has a tag that reads "Asexual Propagation Prohibited". All I can say is that my friends will be getting nice little lavenders for their birthdays. Never noticed this before. Your thoughts?
Someone has bred/selected/engineered this plant and is selling it to you on the condition that you will not copy it. In this way they hope to protect their investment of time, money, creativity and perhaps even make a buck or two, very much like artists who sell a CD or DVD also on the condition that you do not copy it. The fact that they are both easy to duplicate doesn't make it right or even legal. And yes, I do have some copied CD's in my collection and deep down inside I know I'm scum. The flesh is weak. Ralph
As far as Plant Breeders' Rights in Canada goes, here are the rights of the holder. I think things are a bit more restrictive in the US, though.
Agree that propagating it is not legal - but whether the law is a just one or not, is a very different matter. Very many people believe that it is unethical, if not immoral, to patent living things. It wouldn't be the first law that some people feel within their rights to ignore, or disobey.
aah a question of morality.........hmmm what was i going to say, oh yeah, Michael, naughty naughty...if you had invested years of time and money into breeding a plant you would not be so fast to question the patenting laws.....so let's all keep our ideas to ourselves and all go back to hunting and gathering (sarcasm is the lowest form of wit i know) sorry Michael lol (however i do agree profiteering from something is bad) (music industry and *ahem* microsoft)
Ah Oscar, Although your post is deterring, (theres that wit again) i do have thoughts on this that i will share ;-) Imagine having a plant that you arent alowed to propagate. You couldn't legally make any cuttings, or divide a plant, or give away any extras. This is just silly to me and while i have no intention of opening up shop to make money on someone elses invention i also am not going to change my gardening practices. Whats next? Are we going to have to destroy any plant material when we trim our plants to reduce the possibility of someone rooting a cutting? Will we have to tell our governments what type of plants we have in our yards and where? I know this sounds radical but so does telling me how to manage my plants at home.
I think the main interest is in what other people in the nursery trade do with one's 'inventions'. Even with all the patenting and trademarking lookalikes with different names continue to appear at about the same time. Yesterday I noticed what looks like 'Hakuro-nishiki' willow with a color picture card on it calling it Flamingo PPAF. New selling name for 'Hakuro-nishiki', or supposedly independent introduction? Today another place had two different blocks both labeled with their garden center labels as 'Hakuro-nishiki', but with one pot in the less colorful batch sporting a stick tag from the production nursery with "Flamingo" written on it. The ones yesterday (with the color picture cards) were as colorful as the ones today that didn't have a "Flamingo" stick tag. Obviously, I haven't looked yet on the internet or elsewhere to see if Flamingo PPAF = 'Hakuro-nishiki' (as selling names for cultivars are sometimes indicated).
There is a Japanese Maples being sold in Europe that also has a disclaimer that it cannot be duplicated. I find this amusing since that particular Maple had its origin in Japan and through a buddy connection the seller was able to get a plant or some wood from Japan and is now propagating and selling the Maple. The question arose in theMapleforum in which a member posed the open question, were there any royalties paid to the seller of the Maple and was there any paperwork to signify, certify, all of that binding stuff, that the buyer is forbidden to perpetuate the plant? Under what conditions is the buyer prevented from duplicating the Maple even for non sale and who plans to enforce any subsequent sales of the plant? As I see it the problem is not in the giving people a few rooted cuttings of Lavenders, the problem if there will be or is one is when others try to sell this plant by the Lavandula angustifolia 'Lavang 21' name. Plants have been sold to other nurseries to propagate and sell even while the patent was pending with the US Patent Office and were allowed to be sold by the nursery trade name. So in effect when the plant became officially patented that it may have had another name, thus we could have and sometimes did have two names being sold in the nursery trade that were essentially the same plant. Arguments can be made that they are not the same plant when each form may have been grafted onto a different rootstock from each other or from different seedling rootstocks propagated and grown from an array of sources. When the Elizabeth Magnolia was first sold it had patent tags on the plant, in that a royalty was paid by the buyer to the nursery that included a royalty be paid to "Brooklyn Botanical". My question at the time was did the nursery I bought my Magnolia from have to pay the royalty also and my answer was the fee had already been paid when the Magnolias came into the nursery and the royalty fee paid by me went to offset the royalty the nursery paid upon their purchase of these trees coming in to them. Then the next question was, can the Elizabeth Magnolia be propagated and sold sans the royalty and my answer was that it would be by some people but not by the nursery I bought my plant from. Ron, I saw a Hakuro nishiki willow yesterday and was intrigued by it. A charming five gallon plant of it that may have to be mine. Jim
Every garden center up here has the willow. Variegated portions apt to burn in sun, even here, so you will want to place it carefully away from the outer coast in California.
Another victim of this issue is my friend Stanley Zubrowski who figures he made less than $10 on his COPF (Canadian Ornamental Plant Foundation) registered Clematis "Joe Zary". He could not afford to keep paying the registration so now many people are propagating it all around the world and he gets nada! Nothing! Stan lives on an old farm near Prairie River, Saskatchewan and has trouble making ends meet most of the time. He has other creations but has kept them to himself because there is not an easy way for a breeder without money to release their selection and make anything back. My 2 cents worth! Clayton
The other part of this is the people selling for profit and not contributing to the work of plant breeders. Many of the larger propagators would know that this plant (Joe Zary Clematis)for instance was at one time Registered but at this point they are not contributing to the potential for another great selling item for their business because he will not release new things he selects. I am sure there are others who have suffered the same response. As far as the loss for propagators of Patented plants, they are simply causing good people to do criminal acts because plants for the most part are simple to propagate. If someone chooses to mass market "copies", well maybe they deserve to be persued, but the average homeowner who gives a plant to their friend is probably not going to cause large propagators to go bankrupt. Morally a challenge, practically impossible to stop. We can all become breeders and make our own selections to share as another resort. I am growing seedling Hibiscus - we'll see! Also am making selections from the Edible Blue Honeysuckle grown from seed. Clayton
Check out some of the costs! http://www.inspection.gc.ca/english/plaveg/pbrpov/guidee.shtml#a72 end of page. This not possible for a small private breeder on a limited budget. Clayton
hi clayton, your friend might be interested in this site http://www.bransford.co.uk/found/plantnet.htm#protected
Well I am working on some selections on my own but I don't see how I will be able to market anything I develop. I was in conversation with another person who has been trying to get a Clematis to market but the company who was going to help him in this regard don't provide information about how the plant is doing and the suspicion is that it will appear on the market under a new name. I have been very disappointed in some anecdotal stories I have heard about nursery propagators who felt they could not afford to pay some small royalty to the breeder or others who continue to propagate and sell plants without any payment to breeders because the plant has slipped into the open market because the breeder could not keep up the payment to maintain some registered status. My guess is there is no real answer to this and there is not likely an end to plants being propagated and even marketed as "pink this" or "blue that". Making a few extra plants for ourselves is probably not a big issue but it certainly can change in the larger scale.
Here in the USA we can apply get patent protection but the best way to do that is to contact a patent lawyer. After you have received patent protection you can shop around for a distributor. If you have something worthy of filing a patent, then you want a reputable distributor such as Plant Delights' Tony Avent. Talk to your local ag college for information. BTW, never send them your ONLY plant. Be sure you have a few in reserve.
"The owner of a plant patent has a right to exclude others from asexually reproducing the plant or selling or using the plant so reproduced. Thus, a plant patent is infringed by the unauthorized asexual reproduction of the new variety as well as by the sale or use of such asexually reproduced plants. Any one of these acts constitutes infringement of the plant patent but use or sale of lawfully obtained plants does not constitute infringement. However, unauthorized asexual reproduction of the lawfully purchased plants of a patented variety would be infringement of the plant patent." http://www.plantpatent.com/articles.html
I am getting a Nursery License and my plants will be inspected for patent rights that are not abided by. I need to have proof that the plant's patent has run out or is no longer patented. Also, if I do sell a plant that has a patent on it, I would be in big trouble and not worth the risk. I also have a sport I want to propagate and get to market with the name I chose for it. I have contacted a patent attorney and the cost is around $2500.00 besides lab technicians testing for authenticity. I'm willing to do that but just still feel uneasy about the whole process as it being so unknown for me and I don't know then enormity of the process. Some money I will get back if my plant isn't what I think it is. I also can buy a license to sell a new plant upfront and pay royalties. If I think this new plant is worth it, I will do it. I'm not there just yet, although when I buy from wholesalers, I pay the royalty fee for that new patented plant and I can't legally propagate it either. So because I am basically a moral person I will not propagate that plant and sell it, that way I have a free conscience. Seeds can also be patented too.
Canadians have two resources that I am familiar with: Plant Breeders Rights and Canadian Ornamental Plant Foundation. My point is that as a private Breeder/Selector, if you do not have some firm like a propagator behind you or you are in the nursery business yourself, the cost of getting some return is high (in the case of some, impossible, as there can be ongoing membership or rights maintenance fees). I aplaud your efforts and certainly wish you well in both endeavors! Clayton
