Patent Plant

Reading a short but interesting post recently on patented plants got me thinking. In the post a mild joke made reference to the patent law on plants.

The comment was “Grant of a patent for a plant precludes others from asexually reproducing or selling or using the patented plant…” It seems Wendy decided she didn’t want to buy the plant simply because of any potential legal issues.

I’m sure others must feel the same way. So let’s clear a few things up. If you purchase a patented plant you can “grow it.” You simply cannot propagate the plant and sell it.

Looking for and buying patented, trademarked or selected varieties of plants can help you with your plant care. The question got me thinking so much I wrote an article on Name varieties of plants to help out those in question.

PATENT, PLANT – The granting of a patent for a new kind of plant – thereby putting the producer of that plant on the same basis in the eyes of the law as the inventor of a patentable device or method – was authorized for the first time in history on May 23, 1930, when President Hoover signed the Townsend-Purnell Act which amended those sections of the Federal Statutes known as the Patent Laws.

The amendments were comparatively slight, adding in one section after the granting of the right to “make, use, and vend the invention or discovery” the words “(including in the case of a plant patent the exclusive right to asexually reproduce the plant).” To the second section, describing those eligible to secure a patent, was added this phrase: “or who has invented or discovered and asexually reproduced any distinct and new variety of plant, other than a tuber-propagated plant.”

Within 5 years from the enactment of the Plant Patent Act, about 150 patents had been issued, a good proportion of them for roses, a number for fruits, especially plums and apples, a few for small fruits, several for flowering plants and a scattering for evergreens, mushrooms, waterlilies, bulbous subjects and so on. Five years later (October, 1940) the number of patented plants was 430, roses still being strongly in the majority, and there being much the same scattered distribution among other kinds. The progress of the Act has, however, been accompanied by considerable controversy as to various important details – especially as to its interpretation in the U. S. Patent Office where the applications are handled and reviewed, with the assistance and cooperation of experts in the Department of Agriculture. Questions have been raised as to the right to issue a patent for a “sport,” that is a new type or kind of plant produced naturally, not as the result of man’s efforts, but observed, recognized as meritorious and propagated by him. Also there is disagreement as to whether patents or the formal patent descriptions should refer to, or cover, individual plants as such, their products, such as fruits or flowers, etc., or plant types or groups.

Irrespective of these discussions and their ultimate outcome, the fact remains that the legislation was introduced and enacted for the purpose of recognizing the value of the work of plant breeders and others who give to the world new and worthwhile plants; and of enabling such persons to secure some material reward for their work by giving them the right, for 17 years, to control by license or otherwise the production and sale of the offspring of their plant “invention.” That such recognition and right were deserved and long overdue seems to be generally accepted by persons familiar with the history of the development of new plants and with the many cases in which the contributor of a vastly important variety not only failed to receive anything for it but actually died in want. The only question at issue is as to how best the desired objective can be attained so as to avoid future complications and litigation.

Meanwhile, as far as the average gardener is concerned, the plant patent situation is briefly this: The person who, through hybridization or other method, produces a new plant, or who first recognizes in one of his plants a new and desirable characteristic, and who thereupon propagates that plant asexually – this is, by any other method than by seed, is now able to apply to the U. S. Patent Office for a patent on that plant. The Patent Office will supply full information and instructions as to how this should be done; but since all patent matters are complicated and involve legal and technical points, it is usually desirable and advisable to employ an experienced patent lawyer to look after the filing of the patent application with the necessary description and drawing; to make the required search of previously Issued patents, etc. There arc certain set fees for some of these steps but it appears than $200 is an average total cost.

Once secured, the patent does not in itself confer any protection, but merely gives the holder standing in the eyes of the law and the Government if he should bring suit against any person who attempts to propagate and dispose of any plants of the patented variety without permission. This may involve the purchase of a license or the signing of an agreement for which the patentee can charge whatever he thinks is right. Payment can be required as a flat sum, or in the form of royalties on authorized sales.

Another value of a patent is that it can be used as a selling point in advertising a new plant. For it seems obvious that a new sort, for the protection of which the introducer is willing to spend some hundreds of dollars and go to considerable trouble, is possessed of more than average merit, and therefore is worth the premium price asked for it. Of course, the expectations of the producer of the plant may not be realized; again, after a few years, sales under license may have been so great that the value of the patent will lessen considerably. However, in either case, its holder will have secured far more than was ever possible before the enactment of the Plant Patent Act.

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