How can I tell if a plant given to me is patented?

Question

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?

Answer 1

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.

Answer 2

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.

Hope that helps.

Answer 3

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 patentholder 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.