I was reading a newspaper column about “petiquitte” and one of the point the columnist made was it’s a bad idea to breed a dog just to recoup the original price of the dog. She compared it to reproducing a potted plant just to recoup the price of the plant.
In parenthesis she said “besides, reproducing potted plants is illegal”.
Is that true? How would anyone know? What’s the law behind this - copyright?
I do recall buying a potted flower of some sort last year and the tag advising the customer that reproducing the plant was illegal.
Illegal or not, people take cuttings of plants ALL the time.
I don’t see how it could be illegal- it’s no more illegal than buying tomato seeds, growing tomatoes and then giving some seeds to your friends so they can grow tomatoes next year. Sure, the seed and plant companies may not like this, but that’s why they put all that “90% germination” and/or particular tomato variety stuff all over their products, so they are distinguished from each other and from unknown ones like Aunt Edna’s tomato seeds.
Maybe if one of those potted plants is patented somehow, then reproducing it would be illegal, but AFAIK, there aren’t any of those.
It’s not illegal in general, but this site, among others, mentions that some plants are patented, and so are illegal to propagate until the patent expires.
Bottom line: Ooooohhh, don’t arrest me for cloning your plant, mister! Please don’t hurt me!
Sheesh. I’d love to see a lawyer defend a patent against a little old lady somewhere who took a cutting off a patented plant.
She should have researched this through the USPTO first!
So, yeah. It might be “illegal”, but its not enforceable on the scale most people are probably thinking of. Such patents are presumably intended to protect against large agri-business intellectual property theft.
It is not illegal to violate patents. You may open yourself up to a lawsuit, but the burden is on the patent holder to enforce it; the state will not prosecute patent violations.
The term “illegal” has both a narrow and wide meaning; in the narrow sense something is illegal only if it is punishable by the State after a criminal prosecution, but it’s not incorrect to say that something that subjects a person merely to civil liability is illegal as long as the liability is mature as soon as the action obtains. For instance, it’s illegal (in this wide sense) to violate a patent or breach a contract because as soon as the breach is made the liability accrues. It is not, however, illegal to negligently operate a forklift because, if you’re lucky and no one gets hurt, no liability accrues despite the fact that you would be liable had things turned out differently.
–Cliffy
Yes, in particular, some African violets are patented, so there’s always an ongoing discussion in African violet clubs as to whether it’s permissible/ethical to start leaves from the patented varieties for the annual plant sale fundraiser (African violets make baby plants from a leaf stuck in potting soil). Generally the consensus is “no, it’s not”, but people sneak those Optimaras in there anyway.
Lots of plant varieties are patented, and the tags come with warnings specifying “propagation prohibited”. This refers primarily to vegetative propagation (i.e stem or root cuttings), since seed is likely to produce a range of different offspring.
This is aimed at commercial growers, and the big wholesalers will enforce their patents via checks of smaller growers, who may be licensed to sell only a certain number of the protected variety. Technically, the average person who buys such a plant isn’t supposed to propagate it either, but as noted, this rule is virtually unenforceable unless the Plant Police starts busting down doors.
One day someone will develop the genetic manipulation necessary to make plant propagation by ordinary means impossible. Then, horticultural hackers will spring up to beat the system, and…
I just bought two roses for my wife today. They’re labeled “unlicensed propogation prohibited.”
I thought patent infringment (atleast over here in the US) only applied if you were selling something. If you were making (growing) it for your self, or giving it to a friend for free it’s fine.
I specified US becouse I think In most of Europe you are in violation even if you are only building it for your self, or maybe giving it to a friend. I think thats is total crap, but hey Europeans it’s your (sub)continent.
Of course I am not a lawer so I might be wrong. Most important I am not responsable for any stub toes as a result of my post!
I’ll try to give some pointers to answers, based from a Dutch perspective with some points on how it might work in U.S. law.
Copyright, AFAIK, would not apply to plants.
General patent kawmight apply if the plant is the result of genetic engineering. Whether this could apply is still to some extent subject to discussion, though I believe currently U.S. and European law do recognize that biogenetic inventions could be patented if certain requirements are fulfilled. (for U.S. plant patent, see next paragraph)
For plants there is a specific branch of I.P. law. It’s called ‘kwekersrecht’ over here. Apparently Plant variety law is the general English name. The U.S. apparently calls it plant patent (U.S. plant patent information).
Its purpose is to protect the investment of plant growers (people who make their living ‘breeding’/developing new varieties of plants such as tulips). This used to be something that was only regulated on a national level, so each state had its own law and the grower would have to apply for protection in each state again (just like patent law used to do). There are however international developments: the UPOV treaty of 1991. See UPOV
All this means that for new varieties certain restrictions would apply. Already existing plants would of course not be protected.
You should furthermore check whether patent law would apply at all if you are only doing it for personal use. In general, patent law only applies to businesses and commercial use. It certainly does in The Netherlands, and I’ve never heard of it being different elsewhere, in particular in Europe. Maybe netscape 6 can explain why he thinks that wouldn’t be the case.
Here’s more information on plant patents and trademarks.
And a perspective from the guys with briefcases.
I should have known better, certain friends of mine will tell you how Amstredam is famous for it’s plants,
The reason I thought that is a German guy I used to know told me so. (some patent treaty or something)
Well even in Europe it’s fine to harvest seeds and replant them.
There is/was a case recently in Canada whereby a farmer accidently acquired some seeds from a nearby farm that had expensive, patent seeds. The company sued the farmer, and I think it’s in the provincial or national higher-courts. I wish I remembered more details. I think I read about it in Popular Science – may be article is available online. In any case it was a breed of corn resistant to an herbicide.
That was Monsanto sueing some farmer when their genetically engineered canola seed blew onto his property from someone else’s farm. Don’t know much more about it though. Heh, getting sued because the wind blew… :rolleyes:
It may or may not be the same one, but there was a case very recently (within the last month) where a farmer found cannabis in his crop and informed the police. It was found to be because of a situation similar to the one you decribed.