Thinking of selling plants from your budding collection? Many new sellers are unaware that they could be unwittingly breaking the law by selling plants protected by patents.
In the world of horticulture, plant patents aren’t just paperwork—they’re serious legal rights that can restrict who gets to grow and sell certain varieties.
Without realizing it, you could be cultivating plants owned by someone else, exposing yourself to potential legal action and hefty fines. Before you start sharing your prized plants with customers, it’s crucial to know which ones you can legally sell and which might lead to trouble.
Why Should You Care About Plant Patents?
A plant patent is a special protection granted by the U.S. government. It’s given to inventors (or their families) who create or discover a new type of plant.
According to Title 35 U.S. Code, Section 161, a patent can be granted for new and unique plants that are reproduced asexually. This includes plants that are different from tubers (like potatoes) and those found in the wild. (ref)
Understanding plant patents is important for several reasons:
- Innovation: Patents encourage people to invent new plants. This can lead to better fruits, flowers, and other plants that can improve gardens and farms.
- Legal Protection: If you’re growing or selling plants, knowing about patents helps you avoid legal problems. You don’t want to unintentionally break the law by using a patented plant without permission.
- Quality Assurance: Patented plants are often of higher quality or have unique features. If you understand plant patents, you can make better choices for your garden or business.
By caring about plant patents, you can support innovation, protect yourself legally, and choose the best plants for your needs.
How Can You Tell if a Plant Has a Patent?
If you’re curious about whether a plant has a patent, there are a few ways to find out.
- Check Plant Labels: If you buy plants from a nursery or store, look at the labels. Sometimes, they will mention if the plant is patented. This can be an easy way to find out.
- Look for Patent Numbers: Some plants have a patent number printed on their tags. If you see a number, you can look it up to see what it refers to.
- Search Online: You can visit the U.S. Patent and Trademark Office (USPTO) website. They have a database where you can search for plant patents. You can enter the plant’s name to see if there is a patent for it.
- Ask Experts: If you are still unsure, you can ask garden centers or horticulturists. They often know about plant patents and can help you understand more about the plants you’re interested in.
- Read Plant Publications: Books and articles about plants often discuss patents, especially for popular varieties. These resources can give you a better idea of which plants are patented.
Knowing how to check if a plant has a patent can help you avoid any legal issues. Remember, patented plants are special because they are new and different.
If you want to grow or sell them, make sure to follow the rules so you can enjoy your gardening without any problems.
How Long Can a Plant Patent Last?
If you’re interested in plant patents, it’s important to know how long they last. A plant patent is granted by the U.S. government, and it gives the inventor protection for 20 years from the date they file their application.
This means that for two decades, the patent owner has exclusive rights to their plant.
Here’s what this means for you:
- What You Can’t Do: During these 20 years, no one else can asexually reproduce or sell the patented plant without permission. This is important because it helps the inventor earn money from their hard work and creativity. If you want to grow or sell a patented plant commercially, you must get permission from the patent owner.
- After 20 Years: The patent expires once the 20 years are up. This means anyone can propagate and sell the plant without permission. After the patent expires, the plant becomes part of the public domain. You can think of it like a library book that no longer needs to be checked out. It’s now available for everyone to use.
- New Variants: Sometimes, a patented plant can lead to new varieties or mutations. If someone invents a new plant based on a patented one, they may need to apply for a new patent. This new plant could also have its own 20-year protection.
- Staying Updated: If you’re planning to invest time or money in a specific plant, it’s a good idea to keep track of when the patent will expire. Knowing this can help you plan for the future. For example, if you want to start a business selling a patented plant, be aware that your exclusive rights may end in 20 years.
If you’re confused about patents and how long they last, consider talking to a lawyer who specializes in intellectual property. They can help you understand the rules and regulations and ensure you’re following them correctly.
Can You Grow New Plants from a Patented Plant?
You might be wondering if you can grow new plants from a patented plant. The simple answer is no. Legally, you can’t propagate a patented plant, even if it’s for yourself or as a gift. But in reality, it’s unlikely that anyone will come after you for it.
While you can grow new plants from a patented one, you need to be careful. Always check for permission before propagating patented plants for sale. By staying compliant according to the patent rules, you can enjoy gardening while respecting the rights of plant inventors.
If you want to skip dealing with patents, consider using non-patented plants, which you can grow freely. Understanding these plant patents helps you make smart choices in your gardening and enjoy your plants without worries.
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Nancy has been a plant person from an early age. That interest blossomed into a bachelor’s in biology from Elmira College and a master’s degree in horticulture and communications from the University of Kentucky. Nancy worked in plant taxonomy at the University of Florida and the L. H. Bailey Hortorium at Cornell University, and wrote and edited gardening books at Rodale Press in Emmaus, PA. Her interests are plant identification, gardening, hiking, and reading.