Plant propagation

Can I Multiply a Patented Plant?

By Larry Hodgson

Question: I was taking cuttings of my coleus as I do each spring and saw on the original label a mention, “Propagation strictly prohibited.” I’d never noticed this before. Does this mean I can’t take cuttings from this plant? Because if I had known that, I would never have bought it. Half the fun of growing plants is multiplying them!

Darlene Leblanc

Answer: More and more plants these days are protected by plant patents. The label might bear a trademark symbol (™) or indicate “PPAF,” which stands for Plant Patent Applied For. Or maybe it has a plant patent number. Often, you’ll also see on the label a mention like “propagation strictly prohibited” or “asexual propagation prohibited.”

Although you might see other interpretations on the Internet, a legal opinion from the Garden Writers Association (now Garden Communicators International) several years ago asserts that the asexual multiplication of a patented plant without the permission of the patent owner, usually a nursery, is indeed illegal. And this even applies to amateur gardeners. So, legally speaking, you’re not allowed to divide it, take cuttings or multiply it by grafting or tissue culture.

You could theoretically harvest seeds from your plant and sow those, as this type of plant patent only covers asexual reproduction, but then such plant are hybrids and don’t come true to type and that rather defeats the purpose.

No Jail Time

Monopoly figure getting out of jail.
Don’t worry! You won’t go to jail for your crime! Ill.: CIipArtBest.com

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 propagated. 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 their garden really isn’t on the owner’s radar, but a nursery producing and selling 10,000 plants of a patented variety without permission would certainly be taken to court.

I checked this out with a representative of a nursery that owns numerous plant patents, and effectively, she told me her company has 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 are part and parcel of gardening. While they don’t actively encourage home gardeners to reproduce their plants, the company’s policy is to not react when it happens. However, she insisted they 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 you find that acceptable.

9 comments on “Can I Multiply a Patented Plant?

  1. Russ Clark

    Several years ago we bought a mauve geranium, which had a ‘no propagation’ sticker on it and as I do every autumn, I took cuttings to produce a new one for the following year. None of the cuttings rooted but kept the original plant. I tried several more times with cuttings but with no success. After 4 years we still have the original but it is showing its age and will have to look for a new one. Perhaps the sticker should have said ‘cutting reproduction impossible‘.
    Russ

  2. While I do understand the rationale behind patenting plants to me it still seems wrong. Part of the fun of growing is to share. I have patented agaves that produce pups like crazy and heucheras that beg to be divided. Theoretically, I can’t separate or divide these. From a gardener’s perspective patents seem ridiculous. From a commercial perspective I do get it.

  3. Randy Evans

    Don’t take those tags off your mattress, either!!

  4. For my own garden, I grow whatever I want to, and may have grown patented plants without knowing about it. In the nursery, that does not happen. Most of the rhododendrons were very old, so if they had ever been patented, such patents expired a very long time ago. However, one of our citrus (at another farm) was still patented while we grew it. Copies that we grew were documented, and we paid royalty fees for them. It was very minimal, and barely paid for the work of documenting them. The patent expired shortly afterward.

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