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Sometimes, I receive an unlabeled plant start from a friend, and they do not know if it is patented. If I want to grow and sell a plant in question, is it okay to just take the chance, or is there a way to find patents?

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15  
Spray Roundup. If it doesn't die, it's patented =) Oh, wait...! –  Lorem Ipsum Apr 7 '12 at 3:39
    
Do you have an example (with link) of a plant patent? –  Hauke Mar 15 '13 at 9:06
    
There seem to be different kinds of patents for plants. For instance, Pioneer wheat protects against people planting the seeds, but I've heard of patents that protect from asexual popagation (cuttings, etc.) but don't say anything about not being able to plant the seeds. Whatever the case, if your plant is 20 years old, it should be public domain. Patents don't last forever. I'm excited for 2022. –  Shule Oct 13 at 23:57
    
@user2962794 This question (and many others I've asked) are theoretical, and I didn't have an example plant on hand when the question was asked. It was mostly as a reference on the subject for this site. –  J. Musser Oct 14 at 2:31

4 Answers 4

up vote 13 down vote accepted

Some plants or shrubs can be distinguished by specific traits like leaf colour. The Diablo Ninebark with it's purple leaves is hard to miss. So if you get a purple leaved Ninebark and propagate a hundred of them for sale you would be violating the patent.

I am not a patent lawyer but I suspect that it is your intent as much action that means more. If you don't ask questions and propagate with intent to make money that will be trouble. If you receive a gift which is hard to identify and grow it in your garden it's not worth anyone's time to identify you or prosecute.

@Dmitriy Likhten Yes, farmers have been sued by agro corporations for patent infringements. However from the original question it does not seem that @jmusser will be planting a whole field of plants with intent to sell them for profit.

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IANAL either, but I would guess if you're not selling the plant as the patented plant, then you're likely not raising any red flags to begin with. –  DA. Oct 15 '12 at 13:44
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I must disagree. This is done ALL the time. Farmers buy a bunch of seeds, unknown where the seeds came from. The farmers plant the seeds. They are then given a shakedown due to patents because these seeds come from patented crops. Currently there are court battles going on on weather or not it is constitutional to patent a DNA strand which replicates (can reproduce) –  Dmitriy Likhten Mar 15 '13 at 20:45

My knowledge of IP law is pretty limited, but from a semester of patents in law school, I can assure you that "good intentions" will not save you from a lawsuit. There is an exception for "purely scientific inquiry" if you are not going to use any research for profit (we're talking backyard invention kind of stuff here). The reality is that lawsuits are expensive and more than likely if you were "caught", you'd just receive a few cease and desist letters or be given an opportunity to setup a licensing deal with the patent holder. Licensing is where the real value of a patent is anyway. Since you're not a mega-corp (otherwise you'd have in-house counsel to direct your question at), you have no assets for a patent holder to go after anyhow.

But, you can scrap that entire explanation under the same principle a previous poster already mentioned - there is basically no way in hell anyone will discover whether you're violating a patent unless you start selling the patented plant in large quantities. At that point, you'd benefit from professional advice, and you'd have the cash to afford it. Patents themselves are confusing (almost intentionally designed that way), so there isn't really anyway for you to go do research on your own. In reality, the system is designed so that at whatever point you realize you're infringing, you'd better setup a licensing deal or stop infringing. But, there really isn't a lot of incentive to put in the leg work upfront, especially if you're small-time.

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It's tough without a name, but internet image searches have gotten a lot better since the question was asked in 2012.

If you can find a name, check to see if it's trademarked (US trademark site). Easier to get than patents, they can still can get you in trouble.

In the US, plant patents are covered by the Plant Patent Act of 1930. Here's an early example of one. Here's general information (US) on what it takes to get a plant patent, and what benefits derive from having one.

Plant patents are mixed in with general patents at the USPTO search site. However, all plant patents seem to start with the letters 'PP'. The proper name of a plant, if you can find it, seems to be sufficient to ferret out any related plant patents.

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There are a few issues here at least in the US, namely genetic engineering utility patents. plant patents, plant variety protections, etc. Each of these covers different aspects and we don't know what the scope of genetic engineering patents are until the Supreme Court issues their case in Bowman v. Monsanto.

I don't actually think there is a sure-fire way of telling if a plant is protected under any of the above laws.

However more to the point, if you can't tell if the plant is patented, it will be relatively difficult for the patent holder to do so either, so if it were me I would assume against patents but that is my own risk assessment for myself and may have very little to do with you. I second the idea that you should probably seek help from a lawyer specializing in intellectual property issues regarding plants because you can get a much better assessment that way, as well as a better assessment of risk.

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