Patented and trademarked plants

Imagine you have a favorite patented rose and another one that is just trademarked. You are planning to take cuttings from each of these two roses to propagate additional plants for your own garden, for your friends or for your garden club's plant sale. Or maybe you have been thinking about trying your hand at creating a new rose by collecting pollen from your patented rose and using it to pollinate another of your roses.

But will it be legal? Might you answer the doorbell one day to find the Patent and Trademark police with a warrant for your arrest in hand?

Back in the early 1920s, plant breeder Luther Burbank, creator of over 800 new plants, including the Shasta daisy, had this to say, "A man can patent a mousetrap or copyright a song, but if he gives to the world a new fruit, he will be fortunate if he is rewarded by so much as having his name connected with the results."

History of plant patenting

Unfortunately, Burbank died before the Plant Patent Act of 1930 was enacted. The act did not allow plants newly discovered growing in the wild to be patented. Only new plants bred from domesticated plants could be patented. Mutations found among domesticated plants could also be patented.

Also to qualify, plants had to be produced asexually -- by cuttings, grafting or budding, but not from seed. But before a plant could be awarded a patent it had to be demonstrated that it was both new and improved. Plants grown for food were specifically disallowed.

A 1970 amendment to the act allowed new plants grown from seed to be patented, including hybrids. In 1995 the act was amended once again to change the original 17 years to 20 years before the patented expired. After that period of time the holders of patents could no longer license and collect royalties on sales. The plant then became a part of the public domain.

It is legal, however, to use pollen from a patented plant to pollinate one that is either trademarked or patented to create a new plant that can be patented.

A 1980 U.S. Supreme Court decision ruled that a life form on the basis of its genetic coding can be patented. Monsanto, Dupont and Syngenta, who have a stranglehold on genetically modified corn, soybeans and canola plant seeds, can sue any unlicensed grower planting their genetically modified seed. Could our commonly grown garden seeds be far behind?

But not all new plant introductions are patented. The patenting process can be long and costly to the breeder. A single patent can cost thousands of dollars. And just because a plant is new and patented, doesn't guarantee that gardeners will buy enough plants for the patent holder to even recoup the cost of the patent, let alone make a profit.

Why bother
with trademarking?

Instead, some plant breeders choose to trademark their new originations. Trademarking is faster, easier and far less costly than patenting. But it doesn't give the protection to the plant breeder that patenting does.

A trademark protects only the cultivar's name for the new plant. For example, the popular "Wave" series of petunias can be legally propagated from seeds or by cuttings and even sold. But they cannot be sold under the "Wave" name. A name that is not similar must be used. Trademarks, unlike patents, have the advantage that they can be renewed every 10 years indefinitely.

So why should plant breeders bother to trademark their new originations? Trademarks help build customer loyalty to a trademarked plant. For example, after the Wave series became all the rage, the same petunias sold under other names, trademarked or not, have not yet become nearly as popular.

What does a trademark on a plant's label mean to gardeners like you? It means you are legally free to propagate it either by seed, division or cuttings. You and your garden club can sell any trademarked plant you grow as long as you don't sell it under its trademarked name.

How do you know if a plant is patented, trademarked or not? Look for the plant tag on trees, shrubs and perennials that you are considering buying. If you see PPAF, PVR or Patent Pending on the tag, you know that these plants are protected. If the plant is patented, you should see the patent number on the plant tag.

As for trademarked plants, a "TM" by the plant name lets you know that the name has been claimed but not officially registered. A capital R within a circle around it means that its name has been officially trademarked.

What about those Patent and Trademark police? Well, there aren't any. However, nurseries and others who propagate and sell patented plants are sometimes reported to the owners, and they can be charged with breaking patent laws. Your chances of getting into trouble if you propagate patented plants for yourself or friends are highly unlikely. But keep in mind that there is such a thing as ethics. So let your conscience be your guide.

* Freelance gardening columnist Jim McLain can be reached at 509-697-6112 or ongardening@compwrx.com.