I know that people will wholeheartedly disagree, but it is my honest opinion that so long as you're not making profit, who cares? The garden industry is not going to crash and burn, and hybridizers are not going to go hungry because a group of people are carrying on an age old tradition of passing along cuttings of their favorite plants. It's akin to making a mix-tape of your favorite songs to give to a friend on a special occasion. Yes, the music is copyrighted, but no - the music industry is not going to wither away. Just my opinion.

--Joe in TX

my sentiments exactly. Thanks so much.

Talk to a hybridizer, see if that changes your mind.

I have heard, and it could be wrong, that as long as you are not commercially selling your rooted cuttings, you can do what you want. Commercially selling would include Ebay, but trading for other rooted cuttings, etc. is not the same.

As far as the patent laws are concerned, it is the same. They won't try to differentiate cuttings "for sale" vs. cuttings "for trade".

I'm in agreement with Diane on this for the most part. I will not take any cuttings from a rose with a U.S. patent EXCEPT for patented roses that are no longer commercially available here in the states. An example would be the florist rose Escimo (Kordes), which the breeder transferred rights to Bear Creek Gardens. They never made this rose available as a bush, though it is listed as one of the better florist roses for the garden. I have no problems in that case rooting since Bear Creek is notorious for doing this.

I got my wrist slapped for rooting another florist rose, Latin Lady, which is not even patented here in the U.S. The person, I am guessing, believes that if a patent exists anywhere in the world, we should respect that. My feeling is that if it is not patented here, they have no intentions of making it available, so if I can root a rose that would otherwise not be available then good for me.

Triple b, since I'm the person who pointed out to you that the asexual propagation of patented roses isn't legal, I don't think it's fair to say you've had "your wrist slapped". I was just trying to let you know that what you are doing may not be lawful. I mean you no ill wil and I never suggested you had any criminal intent (as I never believed this was the case).

Penny Lane is listed as "PPAF". I'm by no means an "expert" in patent issues. My belief is a PPAF rose is protected, but I may very well be wrong. I hope someone with more expertise could clear up this issue.

When it come to propagating commercially available roses which are under patent protection, it's not something I'd do, as it's neither legal or ethical. Whether others disregard patent laws, does not alter the legality of ones own actions.

Bill

So if the Penny Lane does not 'take', does anybody know where it is available in Canada? I could do a search, just thought somebody may know offhand first. I really like the looks of this rose.
Well said, William. You are a very good writer and state your case very well. Have you studied law by chance? I am not making any 'lawyer' digs, just wondering how you got to be so comprehensive at stating your case. Perhaps you have had pastoral training? They also have a gift for clearly articulating right from wrong.

I do not see where Penny Lane (if you're talking about the climber) is patented here in North America. It is in Europe and Australia, but I found nothing in the U.S. patent database using its registered name. That said, I also see nowhere to buy this in Canada.

Uh, I found it online at Pickering and at Old Rose Nursery. (Meek shrug). Call me 'busted'. Still I hope my cutting makes it.

Well Penny Lane succumbed a couple days ago. Her stem went brown. OH well. I have since made some modifications anyway so hopefully my future prospects will root instead of rot.

I believe there an "intent to sell" clause somewhere in the patent laws??? If not, perhaps there should be?

You would think so wouldn't you? And if there isn't there should be. Up here there is such a thing as a card carrying pot smoker. These are people who carry a card allowing them to have on their person and cultivate certain amount of MEDICAL marijuana for personal pain relief (cancer patients, people suffering from glaucoma, HIV patients). If the authorities catch you holding marijuana with clear intent to sell, you get charged etc. If it is evidently for personal use, you are OK. But then, the gov't hasn't given much notice to rose propagators because the Hell's Angels aren't a factor either.

nastarana,

I believe you are correct. That is why I feel no remorse cutting/rooting/selling Bear Creek roses that are under patent, but never commercially available. An example of this would be Escimo, a florist rose Floribunda from Kordes who assigned the rights to this bush to BC. It has never been available even though it is a great garden rose.

If your neighbor had a bunch of apples on a tree that he didn't plan on harvesting and you wanted one but he had a "no trespassing sign" posted and told you he didn't want you to take any, would you just go ahead, sneak over, and steal one? How about if you wanted to eat one but not sell it? That is exactly what you are doing when you grow a cutting from a patented plant even if the grower is not currently offering them for sale.

Some may be OK with this, but it IS illegal and (in many people's opinion at least) dishonest to asexually propagate a patented plant. It makes absolutely no difference whatsoever that you don't plan on selling it. I am a little surprised when people come on here and ask other's if they think it's alright (I'm not talking about the legal aspects). You are asking others if they think it's alright to steal. If you think it's alright, then that's up to you, but why try to get others involved in your moral decision to try to beat the system.

If you feel strongly about plant patents, contact your congress person. If the law needs to be changed, maybe you could work toward that.

I agree with all you say except when it come to a patent holder who has no intention of selling the plant. Legally, there has to be an intent to sell in order to claim patent infringement. If there is not, then you have broken no law. I've had many a discussion with Bear Creek about this in regards to roses that were assigned to them from other breeders, and they sat on the plant and never offered. They do this to keep a certain rose off the market while they develop one similar that they can sell as their own. An example would be the plant Taboo. This was developed by Tantau, and rights in the U.S. assigned to Bear Creek. Bear Creek then developed their own plant with similar characteristics (Black Magic) and put that on the market. This is why Tantau dissolved their relationship with Bear Creek. It is still hard to this day to acquire Taboo, even though I feel it is a much better plant than Black Magic.

There is NO stipulation in the plant patent law about intent to sell on the part of the patent holder or grower. The patent holder does not have to sell or intend to sell the plant for the patent to be valid.

Personally, I wouldn't feel (very) guilty about propagating something (for my own use) that the patent holder didn't intend to sell, but I know I could still potentially get in trouble for doing so.

I noticed that the original post of this thread was from a Canadian member. I'm not familiar with how Canadian law deals with US patent laws, but, for those of us in the US, the law is available for review. It seems there is way too much speculation and not nearly enough research on the subject. For those interested, I will post a link to the relevant code. Chapter 15 covers plant patents.

Here is a link that might be useful: Bitlaw U.S. Patent Laws

Well this is quite the can of worms.
I do feel especially bad for the smaller hybridyzers mainly when they get intentionally ripped off by folks who intentionally propagate their patented roses for selling for monetary gain or profit. However, that being said I also feel for the folks who really want a plant of a certain rose and patent holders such as J&P/Bear Creek have no intention of marketing the rose for whatever reason. Classic examples would be Lucille Ball and Apricot Passion that they developed yet don't market and still hold the patent.
I did write to J&P and received permission to propagate Lucille Ball cuttings from my one lone bush and for a friend to send me rooted cuttings of their bushes of LB so long as it was not for profit. For me that was perfect. I now have my LB bush and when it is big enough to take cuttings I will do so and share them with my good friends for free.
I also asked for and received permission from a small time hybridyzer whose roses I love to asexually propagate some of his roses to do some testing of various understocks and own root plants to find the most vigorous growers. I think so long as you are on the up and up with these people they can be very easy to work with. These two instances I am sharing were a breeze to do and keeps my conscience clear.
Now, if someone would just come up with some cuttings for me of Apricot Passion..........any takers????
John

35 U.S.C. 163 Grant.

In the case of a plant patent, the grant shall include the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any parts thereof, into the United States.

(Amended Oct. 27, 1998, Public Law 105-289, sec. 3, 112 Stat. 2781.)

Now, if I'm understanding the above correctly (which I may not be), it means that while a plant is protected under patent law, you cannot asexually reproduce that plant *period* - not for your own use, for a friend, for selling, nothing.

As for ethics, I agree that it is not ethical to reproduce a patented plant no matter what. Any creator of anything - music, comedy, visual art, new technology, plants, etc - will tell you that it is extremely upsetting and frustrating to have their creation stolen, even just for personal use. I know I would feel the same way.

But far be it from me to judge anyone - that is not my intent at all. Goodness knows I could be accused of having done things in the past that some would consider less than ethical. To each their own; I'm just pointing out the legalities of it and the reasoning behind said legalities. No wrist slapping from me. :)

I'm no expert on patent laws but one poster above mentioned they didn't think making a special mix tape for a friend is a problem for the record business and all this about patent issues is very similar to the copyright issues that are seemingly taking down the general business of music. Millions of people around the world get on illegal sites daily to download music for free even though the songwriter, the artist and yes, the big music company has invested to make this music. I do undertand the desire to make a cutting from a rose you can't get in your local stores but I think "legally" , it's wrong.

Hi, hope you can help or give me your opinion also. I have a red cascade miniature rose. It came with a tag that gives a patent number and states that "unathorized propagation is prohibited." I looked up the number in the us patent website and there were no further patents taken out on this rose since 1976. Also, it came with a tm next to the rose name but when I looked it up in hmf, only the patent number and no indication of the tm was mentioned. Is the company I bought it from pulling a "fast one" or is there another way of finding out? I'd like to propagate it for my mother...Any info?
Thanks,
Lee

OK so where do I get a/the list of "public domain" plants any one can propagate and sell from their own backyard "state liscensed" nursery?

Vangy likes to play in the dirt. Yes I do propagate plants, house & landscape

Red Cascade is out of patent. More than 20 years have past. If you searched the USPTO db like I just did with the patent number and it comes out with no results, then the patent is long past.

Vangy, it is the other way around, there are too many roses to have a list of those not under patent. Easier to find out what is under patent. You search the US Patent and Trademark Office to see if a rose is under patent in effect. If it is, it cannot be propagated. if it isn't then it is OK. Go to helpmefind.com, look up the rose. Find the "Registration" name, not the "popular" or marketed name. For example, the registered name of Knock Out is RADrazz. Go to the link below. Enter the Registration name into the "Term 1" box and select "Title" from the "Field 1" pull down. If there are no results, then no patent. You can also try searching in the "Abstract" (pull down from Field 1) just to double check.

Or, you can search for "rose" in "Term 1" and select "Title" in "Field 1" to get a list of patents with the word "rose" in the title.

Here is a link that might be useful: USPTO Search Page

Diane nj! You are a fountain of information! I did originally look it up in plant patent after much trial and error...Thanks for clearing it up for me with your instructions. I was also wondering though--I looked for Red Cascade in the trademark search and did not find anything...I do however, still have the tag with which the plant came with. It has Red Cascade,TM along with pat# and instructions not to propagate asexually. I'm not trying to beat a dead dog here, just trying to figure out why the company would put that on if there were no TM nor continued patent. I like to believe that everyone, especially companies that I do business with, are honest. What do you think?
Thanks,
Lee ;)

I personally think as long as you are using the cutting for your own private use it's fine. I copy my cds for myself so the orignal doesn't get damaged, I just play the copy until it gets scratched then make another.(I don't share them with anyone else, well unless you consider my husband.) You could always propagate them sexually, from seed. I have a friend who grows roses from seed. She likes trying to maybe make a new type/color. It does take longer than cutting but then your not breaking any law. Of course being impatient as I am, I would just use cuttings and let someone prove that I didn't grow it from seed. And for the person who said that about the apple tree. I had one in my yard years ago, what about the apples that fall in someone's yard? Or a branch that's hanging over the property line? I had a neighbor years ago who had plants planted along the border of my yard anything that hung into my yard I cut (To keep my yard the way I wanted to look. And if there was a flower or vegetable in the cutting mix I would keep it.)
B

I copy my cds for myself so the original doesn't get damaged, I just play the copy until it gets scratched then make another.
* * *
Which gives me an interesting reasoning...
I acquired (rescued) a few roses this year, some of which were grafted Austins. I am thinking along the same lines for those, taking cuttings from them, probably next year as it is getting a bit late in the year here and I have a baby coming in three months.
Anyway I would have a 'copy' of Scepter'd Isle and Radio Times in case they somehow managed to snuff it or Dr. Huey rises up and overthrows. Of course, being short on space, somebody else would get to enjoy these propagated roses in their yard for the time being.
One could call it 'protecting your investment' or even 'having a back-up copy of your files'.
They are in pots so I guess the main thing in the nearer future is to get them into Dad's root cellar in a timely manner and overwinter successfully.

Lee, some of the wholesalers do not update their tags. Roses are usually patented within the first few years of introduction, which in the case of Red Cascade was 1976. However, if you are still concerned, ask the source, the great and legendary Mr. Ralph Moore, the hybridizer of this rose. Mr. Moore can be reached through Sequoia Nursery, link below.

Here is a link that might be useful: Sequoia Nursery

Knittingkitty285,
I am certainly no expert, but I know that there are many patented plants that are absolutely illegal to reproduce even from seed. In fact, there are large companies who have sued and won when the pollen from their genetically altered corn drifted into another farmer's field and that farmer replanted corn, from his own field, but that had been contaminated. This is a huge controversy (sp) in Mexico where subsistence farmers have grown corn for centuries, but now their heirloom varieties have been contaminated by huge multinational corporations' gentically altered pollen. Not only are they unable to sell their corn, because many countries are limiting the import of genetically altered produce, but they cannot replant their own seed because the genetically altered seed is patented. They can only legally farm by turning around and purchasing seed from the company that brought the contaminated product into the country. So, to make a long story short, propagating by seed may be illegal as well.

Martha

Stories like that almost make Communism sound better than Capitalism.
Incidentally there were people living the communist lifestyle in the Book of Acts in the Bible. After Christ died, his apostles and other followers sold all their belongings and gave to each as according to his need. They shared everything (except spouses of course.)
Unfortunately someone has to be in charge of things and absolute power corrupts absolutely. Kind of like the ONE RING from Lord of the Rings.
OK now I've gone down a rabbit trail. Sorry folks.
But I certainly feel for those poor Mexicans. Companies like Monsanto is a big problem that is for sure and you hear (read)about them alot in Organic Gardening Magazine.

"You could always propagate them sexually, from seed"

Not really. As far as I know, if you propagate a hybrid rose from seed, you most likely will NOT get a true clone of the original rose; your seedling from seed is almost surely will be different from the rose you got the seed from. I guess that is the reason why the patent law forbids asexual propagation but it is silent about Âsexual propagation.

This corn story is outrageous and bizarre. I haven't heard that! It is also surprising because hybrids-as I mentioned above - usually donÂt come true from seeds. But I admit I know nothing about the Âcloning potential of genetically engineered seeds.

Nonetheless, a ban on using seed or pollen of a patented rose in order to create new cultivars would extremely slow down or make breeding of new varieties close to impossible except if the breeder uses old, out of patent specimens. I doubt that hybridizers are required to wait 20 years or more to get a pollen or seed to create a new rose.

If you search roses genealogy on HMF, in most cases you will see the 'parentage' registered, namely the seed and the pollen 'parent' mentioned, provided the rose was bred subsequent to the time when precise information became available for the breeders as to how to ID with certainty the parents of their new and hopefully successful creations.

I mention only one example. On HMF I just looked up MeillandÂs Bolero (2004, floribunda) that was bred by using the seeds of Kimono (1961) and Sharifa Asma (Ausreef). Sharifa Asma was released in 1989 and is still patented. It was certainly patented when the house of Meilland came out with Bolero, and they obviously had to start breeding Bolero well before the 2004 marketing. I seriously doubt that it was illegal to use SharifaÂs seeds in order to come up with a new hybrid. On the other hand, you can also notice that the parentage of the newest roses by Kordes, Tantau is "undisclosed", not does Austin reveal the bloodline of his newest varieties.

I agree with Mgleason. If a retailer, wholesaler or nursery buys exclusive patent rights, it should make the rose available either by propagating the rose in question or allow other nurseries to propagate it. Diane made a good point by saying: "Talk to a hybridizer, see if that changes your mind". Others argued that the breeder would feel awful and cheated if an individual propagates his/her rose without paying royalties. I believe a breeder also wants his roses to be grown in as many gardens and in as many countries as possible and would feel just as bad and just as cheated if someone buys the exclusive right to market his rose but instead buries it.

Jack Harkness, an outstanding breeder in his own right, argues that Âwe felt that that a holder of a new variety had some obligation to distribute it to his fellow rose growers, whether he charged for the stock or charged royalties . His comment was made regarding Peace. The Harkness company got two plants of Peace earlier as a present from the American distributor, namely from Robert Pyle. The Harknesses wanted to buy stock from MeillandÂs British agent (patent holder, I guess) who in turn informed them that his company had no stock to spare. So the Harkness firm propagated Peace from the plants they got from Pyle and when MeillandÂs British agent visited them, reports Harkness " I made a point of letting him see our stock of Peace, ready for sale at the same time as his, in 1947"
As you can see, in the Harkness incident the issue was not even so critical as it is with Bear Creek aka J&P exclusives from KordesÂ, TantauÂs or otherÂs roses that were pulled from production after a very short period of time and are absolutely unavailable because access for propagation is denied for other US nurseries and import from Canadian nurseries are prohibited. In these cases those who have the specific rose should be able to propagate it or send cuttings to those who want that rose very much.

I would penalize the holder of exclusive rights if the 'intent to sell' turns out to be intent to neglect or abuse the contract that gave this person or company exclusive rights. And I would like to see those appreciated who do everything that the specific rose does not become extinct.

Once again, there's much speculation and conjecture without sufficient research going on in this thread! So far as seeds go, the plant patent law ONLY pertains to a specific type of asexually produced seeds. It's unlikely that the hobbyist would have to worry much about this.

Monsanto's patent was on a genetically modified gene trait not on the seed its self. This is entirely different in most respects than the plant patent law.

Those interested in straightening out this tangled mess should review plant patent law, utility patent law, plant variety protection law, and patent laws relating to genetically modified genes.

Those more interested in growing plants as a hobby should simply resist the urge to grow patented plants from cuttings for ANY reason.

Ceterum,
I'll go one step further; Three years ago I contacted Bear Creek on getting permission to sell both Lucille Ball and Escimo. We agreed on a $1.25 per plant commission to Bear Creek, but I am still waiting on final approval. Why? They did not like the amount of plants I had planned to sell per year. I just do this as a hobby, and I was estimating 75 of LB and 50 of Escimo. Not good enough. Now, Escimo is not available ANYWHERE here in the U.S., so you'd think any I sold would be a benefit to them. I have to start over now because of the sale of Bear Creek, so maybe now it will not be so frustrating dealing with the new parent company.

Mgleason, if you have an Abracadabra that is indeed Abracadabra and does not revert back to anything else, I would like to buy one. I am not good at bidding at Ebay, but if you have one for straight sale, let me know!

How did you know that was me selling that on EBAY? My mother plant has never bloomed without stripes, and I do not sell until I have seen them bloom. The one on EBAY right now is already at a ridiculous price! You'll have to wait as none others have bloomed yet, but one is putting out some decent growth, so maybe soon.

Ceterum,

Where do you live????

brandon7 makes a valid point with respect to the fact that plant patent law varies from country to country. In Canada, plant patents are dealt with under the Plant Breeders Rights Act and plants are not actually patented. In Canada, rights to plant varieties are registered. Because a plant is patented in the US, does not mean it is patented in other countries.

In fact many large US and European Hybridizers will patent their new plant varieties in the US and fail to do so in Canada. This holds even more truth with respect to roses. The reason is largely due to Canada's much lower population and harsher climate throughout much of the country meaning the market for a new rose variety is small. The cost and trouble of registering a variety in Canada is often deemed to be not worthwhile.

Many of David Austin's earlier varieties for instance are not registered in Canada, most of his new ones are. This means that if the rights to a variety are not registered in Canada, it is not illegal to propogate it in Canada. Someone earlier on mentioned the acronym PPAF. This means Plant Patent Applied For and gives some legal protection to the variety while going through the patent process in the US or variety registration in Canada.

There is also a difference in the time protection is provided under US Patent Law and under Variety Registration in Canada. I seem to recall that a US plant patent is valid for 20 years from the date of registration as someone else stated above. In Canada, the registered variety rights must be maintained by the holder of the registration, there is an annual fee, or it lapses in a much shorter time.

There is also the question of trade marks which is different from a patent or variety rights in both the US and Canada. The name of a variety can be trade marked under both US and Canadian law. If the name is trade marked, it cannot be used without permission.

Pickering Nurseries is well known in both Canada and the US as a rose mail order nursery. Anyone who has looked at their catalogue will note that some varieties carry a note saying that they cannot be shipped to the US. This generally means that someone else holds exclusive patent rights to the variety in the US. Pickering often holds the Canadian rights to that variety, but is not allowed to sell it in the US. If I recall correctly, there are five Austin rose varieties in their newest catalogue with that restriction noted.

In Canada, the question is often an ethical one rather than a legal one, as far fewer rose varieties are patented in Canada than in the US.

Variety registration is administered in Canada by the Plant Breeders Rights Office of the Canadian Food Inspection Agency. If you click on the link and go to the "Varieties by Name" page, then scroll down to "rosa", you can look at rose varieties registered in Canada.

You will see the denomination, eg. AUSMUM; Trade Name, eg. "Pat Austin"; Applicant/Holder ( of rights; Agent in Canada; Grant of Rights Date, and Date of Termination of Rights; among other information.

So that's a 25 Cent tour of the Canadian plant variety registration system.

Anyone who wishes to know more can follow the link below.

Cheers, Rideau Rose Lad, Ontario, Canada

What about a rose like Belinda's Dream that is not patented? Can you sell it and what do you need to do so?

Marilyn

Just as a point of interest, the following is a direct quote from "The Complete Book of Miniature Roses" by Charles Marden Fitch. copyright 1977. Page 280

"Unlicensed vegetative (asexual) propagation of patented roses is illegal. Propagating patented plants for sale, even for nonprofit groups such as garden clubs, is a violation of the law. However, propagating personally owned plants for personal use on your own property is not going to bring a lawyer to your door.
Hybridizer Ralph Moore told me that he is happy home gardeners enjoy his creations enough to want more of them. he explained that so long as propagation is done for limited and wholly personal use, it is acceptable to him, even with his patented clones. Remember, though, that all hybrids still protected by patents should never be propagated vegetatively for profit or sale unless the propagator pays legally established royalties.
Patents protect new hybirds for 17 years, thus assuring hybridizers a fair chance to at least break even on their long-term plant breeding work. Hybidizers receive a few cents for each one of their patented roses sold under the usual license agreement. Once a patent expires, anyone can propagate and sell the plant legally without payment of a royalty. This is similar to copyright agreements that protect writing and music for a precise number of years before the works enter the public domain."