Increasingly the plants you see on the market bear a trademark (™) and are patented. The label might say PPAF (Plant Patent Applied For) or it will have a plant patent number, plus somewhere on the label you’ll see a mention like “propagation strictly prohibited” or “asexual propagation prohibited”. Often these are very attractive plants and what gardener would not be interested to try to produce more of them… or at least keep them going by bringing a cutting in for the winter? But does this interdiction apply to amateur gardeners?
Although you might see other interpretations on the Internet, a legal opinion from the Garden Writers Association asserts that the asexual multiplication of a patented plant is illegal without the permission of the patent owner, usually a nursery, even by amateur gardeners. So, legally speaking, you’re not allowed to divide it, take cuttings or multiply it by grafting or tissue culture.
Does Jail Await You?
That said, you will never be taken to court for such an offense nor will you even be fined… as long as you don’t try to sell the plant you progagated. In other words, what worries the patent owner is when an unauthorized company starts selling its protected plant on a commercial scale. A gardener taking 10 cuttings to decorate his flower box really isn’t on the owner’s radar.
I checked this out with Proven Winners, a company that owns numerous plant patents, and effectively, they say have no intention of taking home gardeners to court over plant patent infringements. They are well aware that amateur gardeners get a lot of pleasure out of multiplying plants and that dividing plants and taking cuttings is part and parcel of gardening. While they don’t actively encourage home gardeners to reproduce Proven Winner plants, the company’s policy is to not react when it happens. However, Proven Winners will prosecute fully any commercial dealer caught propagating their plants without permission.
So while multiplying patented plants asexually for personal use remains theoretically illegal, it is not likely ever to be prosecuted. You’ll have to look at your own moral compass to decide whether or not that’s acceptable for you.