Countries in the World Trade Organization (WTO) are required to patent new plant varieties. These patents protect propagation rights over a 20-year period. Once expired, they are patent-free although trademarked names may still be in effect.
Plant tags and seed packets contain a lot of useful information. This guide shows how to understand the information on seed packets.
The information contained in this site is provided for informational purposes only and should not be construed as legal advice on any subject matter.
It surprises a lot of gardeners to learn some of their plants may be legally patented and, by law, they do not have the rights to propagate them by cuttings, division, or seed saving.
This gives an overview of plant patents to help you understood what it could mean for you and your garden.
This is not legal advice.
- Are Your Plants Patented?
- The Lifespan of Plant Patents
- Plant Patents Around the Globe
- Plant Patents Versus Trademarks
Are Your Plants Patented?
Let’s say you buy a plant from the garden nursery and plant it in your home garden. The plant gets lush and beautiful so you decide to divide it or take cuttings so you can have even more.
Or maybe a friend admires the plant and asks if they can take a cutting.
Pretty common for gardeners, right?
And not something we think of as a problem. Gardeners have been propagating plants forever, through cuttings or other asexual propagation methods—and we’re only talking about asexual propagation here—seeds are a whole other issue.
So, what’s the problem?
In some cases when you propagate a plant you are breaking the law even though you own the plant.
If the plant is patented, the patent holder holds all rights to propagation.
The may not care that you divided your plant—or are highly unlikely to know—but they still own the rights regardless.
If they wanted to enforce the patent, they could sue you, demanding your stop and/or compensate them for it.
It does not matter that you’re not running a business—there are no fair use exemptions for home gardeners.
We could not find examples of home gardeners being sued by plant breeders but it’s something to beware of if you choose to propagate plants.
The Lifespan of Plant Patents
Plant Tag Patent Codes
The exact terminology varies from country to country but the patent is noted on plant tags in several possible ways:
- patent pending
- propagation prohibited
or something similar. There may even be a patent number listed.
Any of those things are a sign that someone, usually a company but it could be an individual doing plant breeding on their own, have applied for or received some form of certification that they own the rights to that variety of plant. Either they created it or acquired the rights to it.
With those rights, they can stop others from producing that variety, or even distributing or selling it. And they can sue anyone who does, although I don’t know if it has ever come to that with a gardener propagating a plant for their own garden.
Plant Patents Last Twenty Years
Plant patents last 20 years from the date of certification, which could be a few years after if was applied for.
Typically, the rights to the plant last 20 years from the date of certification, which could be a few years after if was applied for. This could mean nearly a quarter century where they have exclusive right to control how that variety is produced and sold.
When Plant Patents Expire They Cannot Be Renewed
Plant patents cannot be renewed. Once a patent expires, anyone is free to propagate them.
After that time period, because plant patents cannot be renewed, anyone is free to propagate them through cuttings or some other method. This means a plant patented back in 1999 may just now in 2021 be patent-free. That’s a long time to wait to take a cutting or transplant some runners!
On the flip side, plant breeders do not go through all the time and expense of getting this protection just to stop some random gardener from taking a cutting. They could, by rights, but that’s not the aim.
Really they just don’t want to spend a lot of time developing a variety—something new and distinct—just to have some other company—a competitor, perhaps—start propagating cuttings and selling them.
The patent period provides time to recoup expenses and make some money.
Plant Patents Around the Globe
WTO Members Must Patent New Varieties
Over ninety-percent of countries in the world are members of the World Trade Organization (WTO) which requires some form of intellectual property protection for new plant varieties.
Most of those countries are also members of the International Union for the Protection of New Varieties of Plants (UPOV) established in the 1960s. All member countries have similar laws.
Some countries like the United States and Australia will allow plants to be given regular patents—utility patents—just like the kind you would get if you invented a new widget.
Others like Canada, the EU, and UK have a separate category of protections for plants, usually called plant breeder’s rights, different from a patent but not that different—although patent lawyers may disagree with that description.
So, it’s not exactly the same everywhere but it’s pretty similar in most places. With every new international trade agreement, there is more pressure for countries to harmonize these laws.
Unless you live in North Korea or one of the few other countries that are not part of these agreements, there is almost certainly an intellectual property protection law for new plant varieties that apply to you.
Again, no one will likely ever know if you take a cutting, and chances are no one would really care, but the rights holder can care if they choose.
Plant Patents Versus Trademarks
Patents are different from trademarks, which are another form of intellectual property. You will often see the encircled R or a TM next to some plant names. That has nothing to do with patents, so you cannot tell from a trademark symbol if a plant is patented or protected by plant breeders’ rights.
A trademark is a right, or at least a claimed right, to the name, not the actual plant. It is a name the company has chosen to sell the plant under, often something distinct and memorable they hope will boost sales. Proven Winners is very good at this, choosing fun and catchy trademarked names for their plants—and all of their plants are patented too.
Unlike a patent, a company can hold a trademark forever, so long as they keep using it. The plant will also have its botanical name that anyone can use, but only the trademark holder or a licensee can sell it under the trademarked name.
And that’s it for plants and intellectual property. I’ll leave you to decide what goes on in your garden but know the laws are there to protect the breeders of new varieties.
Empress of Dirt
Garden Goodies Digital Bundle
9 Ebooks & Printable Garden Planner & More
by Melissa J. Will ~ Empress of Dirt
All Empress of Dirt fan-favorite garden-related digital products together—at last!
These items are digital files (PDF format) you save to your device, not physical products.
PayPal, Credit Card, Apple Pay
Digital products are not available in EU, UK, and Northern Ireland due to tax regulations.
~Melissa the Empress of Dirt ♛