North American Fruit Explorers mailing list at ibiblio

["Lon J. Rombough" <lonrom@hevanet.com>]

Title: Re: [NAFEX] Patented Varieties

Actually, it varies with the breeder.  Some breeders only ask that you not propagate varieties commercially without a license - one individual increasing a few plants for their own use isn't usually considered a problem.  This tends to apply more to fruit than to ornamentals, though.
    As to where to find patents, all fruit patents are listed in the Register of New Fruit and Nut Varieties by Brooks and Olmo.  The last edition was the 3rd edition.  You can also get updated lists from the American Society for Horticultural Science.   I have a PDF file of the most recent list from there.  Also, patents are for a term of 17 years, so anything that has passed that term is open to propagation unless the holder extends the patent, which is very rare.
    -Lon Rombough
Grapes, writing, consulting, my book, The Grape Grower, at http://www.bunchgrapes.com
Winner of the Garden Writers Association "Best Talent in Writing" award for 2003 


> 1.  No, you cannot graft a patented cultivar, even for your own 
> noncommercial use.
> 2.  No, same as above.
>
> Note however, that patents expire.  If the plant was patented many 
> years ago and is no longer sold by the patent holder, the patent may 
> have expired, in which case these would be okay legally, and morally.  
> Personally, I have trouble respecting the moral claim to a patent or a 
> copyright of anything that the owner of is no longer selling.  (Selling 
> a low volume item every few years counts as "still selling", but 
> there's lots a abandoned property out there.  It may not be legal, but 
> I haven't been convinced it's immoral to clone or copy in these cases.)
>
> In some cases, you can buy the rights to copy a patented plant fairly 
> cheaply.  (At least, cheap if you just want to make a couple of plants 
> for you and your friend.)  I would pursue this if I had a patented 
> plant I wanted to propagate.
>
> 3.  Good question.  I don't know the answer.  If the people you bought 
> the original plant from are still selling it, they may know.  Even if 
> they aren't selling it, they may be able to direct you to the patent 
> holder, or some other seller.  You could also research commercial 
> sellers through the seed-savers book - any reputable commercial seller 
> ought to know the patent status of whatever they are selling.  Most of 
> them will also have someone who could share that with you.
>
> Ginda