How do you find what's okay to propagate?

How do I discover what's still protected by patent and what isn't? Is there some database somewhere?

My fingers itch to take cuttings all over the garden but I hesitate because I don't want to violate somebody's patent. Mind you, it isn't an issue of getting caught. It's an issue of discovering wht the situation is with reference to a patent.

Say, May Night salvia, which grows by my door, or the yellow trumpet vine, or the fancy honeysuckle, where do I inquire about these plants?

Melis

If you still have the label that came with the plant they are required to list on the label either a patent number if it exists or PPAF (Plant Patent applied for) if the patent has been applied for but not granted yet. If you don't have the tag, I'd try googling the cultivar name and find sites that offer it for sale--they are also required to list if there's a patent or not. Those are the two easiest ways, if you want a harder (but 100% sure way), you can go to the patent office website at www.uspto.gov and use their search engine.

It was my understanding, in regards to propagation, that it was to prevent wholesale or retail sale of a patented plant. I think that for your own personal use, it is OK. If I am wrong, someone please jump in here and give us the facts!

No, if it's a patented plant all asexual propagation is prohibited, doesn't matter if you're selling it or not. Now it's highly unlikely that the patent holder is going to come chasing down every gardener who's propagating things for their own use, but technically it's still not allowed.

Unlike with copyright, patent law doesn't have a "fair use" provision, and there is no legal exception allowing you to take cuttings for your own personal use.

Plant patents only cover asexual reproduction -- cutting, grafting, budding, adventitious shoots, etc. -- and do not address viable seeds. You are free to hand-pollinate or lets nature handle it, and then plant the seeds. (You may not sell them in most cases.) If a plant spreads by itself, say with runners or tubers, the patent does not require you to kill any offshoots. You may not, however, deliberately propagate the plant asexually without written permission from the patent holder.

That said, I don't think anyone really worries about gardners dividing clumps, or taking a cutting here and there. The main concern is if you give them away (thus reducing likely sales) or sell them (directly competing with the patent holder). Nevertheless, you are technically liable to lawsuit if you asexually propagate a patented plant without permission.

If you have seedlings from a patented plant you're free to sell those if you want, seed propagation is not covered at all under the patent since seeds don't produce an exact clone of the parent plant (which is what the patent covers). You can't sell them under the same cultivar name as the patented plant though because they're technically not that cultivar.

Thanks very much Dallas Dad and ecrane3. I think the two of you covered all the bases! I do a great deal of seed gathering in the fall and then do Wintering Sowing. If I find a seed (or what I think is a seed) I give it a try. Nothing to lose, a little time maybe. But I'm retired and time is about all I have plenty of!

Thanks. The husband is in for a bad surprise regarding that 'fair use' xception. I believe he assumed it as the same as copywrite.

melis