Columns, In the Garden

Propagating Plants and Intellectual Property

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photo by Nadie VanZandt
Before propagating plants to share with others, gardeners should ensure that doing so will not violate growers’ legal rights as defined through the Plant Patent Act and Plant Variety Protection Act of 1970.

by Nadie VanZandt, Extension Master Gardener, University of Vermont

PANTON – As you plan for the new growing season have you thought to check if the seeds and plants you plan to propagate are protected as intellectual property?

For thousands of years, people have freely propagated plants to share with others. A gratifying and economical way to multiply favorite plants, plant propagation became controversial in the United States when horticulturists began to develop novel cultivars with unique properties.

On May 23, 1930, President Herbert Hoover signed into law a bill called the Plant Patent Act. This bill was created to encourage private investment in plant breeding while protecting growers who spent extensive time (sometimes years) and money perfecting a cultivar only to have their invention freely reproduced and sold by others for profit.

Granted through the United States Patent and Trademark Office (USPTO), the law, codified as Title 35 United States Code, Section 161, gives growers legal rights to exclude others from reproducing, using, selling or offering for sale their invention for a non-renewable period of 20 years.

A plant patent specifically protects the vegetative or asexual reproduction of a newly invented plant cultivar. Asexual reproduction refers to the propagation of a plant without using its sexually fertilized seeds.

Because vegetative reproduction results in an exact genetic replica of the parent plant, various methods are protected by the plant patent. According to the USPTO, this includes “root cuttings, grafting, budding, apomictic seeds, bulbs, division, slips, layering, rhizomes, runners, corms, tissue culture” and more.

In addition, the USPTO issues another form of intellectual property protection called a utility patent that protects specific attributes of a plant such as disease-resistance and seeds, among others.

What’s more, the Plant Variety Protection Act of 1970 is a federal law that preserves reproduction rights of new sexually and asexually reproduced plants, seeds and tubers for 20 years while trees and vines are protected for 25 years. Growers obtain Plant Variety Protection (PVP) certificates through the Plant Variety Protection Office (PVPO) at the U.S. Department of Agriculture. PVP-certified seeds or tubers cannot be saved for subsequent planting and must be bought new each year.

Applying for a plant patent is a lengthy and expensive process, often requiring the assistance of a licensed patent attorney. Growers can spend thousands of dollars to apply for a single patent. Nurseries purchasing the rights to propagate and sell patented cultivars must pay fees to patent owners. These significant costs translate into higher prices for consumers.

How do these laws apply to the home gardener?

Although litigation against individuals is rare, it is illegal to reproduce patented plants. Home gardeners should take time to know the laws.

How can you tell if a plant is patented?

When you buy a plant, check its tag or container. Patented plants are clearly marked with a patent ID, the letters PP followed by a number, or the initials PPAF (Plant Patent Applied For). If you buy your plants or seeds from catalogs, you will find the patent ID listed next to the cultivar’s name. PVP-certified seeds packets also are clearly labeled.

Many horticulturists consider cultivars developed before 1951 as heirloom. For this reason, heirlooms may be safe to propagate without violating the law, but the term is often loosely defined. Once a patent has expired, after 20 to 25 years, you can freely reproduce the plant.

Heirloom or not, it is a good idea to do your homework. This is especially important when donating or purchasing plants at community plant sales.

You can access the USPTO website at //go.uvm.edu/plant-patents for detailed information on plant patents or to search for specific patent. For more information on PVP certificates, consult the PVPO website at //go.uvm.edu/plant-protection.

[Nadie VanZandt is a UVM Extension Master Gardener from Panton.]

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