Are you asking if we would be OK with patenting one? If so, sure, I would be OK if I had produced a plant that was eligible, felt like it was worthy, and had a desire to patent it. Although it's possible, I very much doubt I will ever actually be in such a position.

Plant patents are used to protect the interest of people who have gone to great efforts to produce a special cultivar. They have as much right to do so as a writer has to copyright a novel.

Tends to be done by bigger nurseries - probably because they aren't cheap. What's funny is how often plants receiving patent protection don't seem to be that much of a departure from what is already around, or otherwise meeting the criteria for patenting - including not having been on public display (is it different for plants?). However part of it is if another, third party challenges a patent application - a family friend had this happen to his non-horticultural invention, says it goes on all the time. Maybe with plants hardly anybody ever objects.

Plant patents are used to protect the interest of people who *MAY* have gone
to great efforts to produce a special cultivar. They have as much right
to do so as a writer has to copyright a novel.

A right to do something doesn't make it a good idea. The world of horticulture (I'm setting aside agriculture for this discussion) managed to make it up to the 1970s without many plant patents. That was when they started becoming much more common.

I discussed one of my issues with them here: http://forums2.gardenweb.com/discussions/1615403/are-patented-plants-ruining-horticulture  They might be good for the bottom lines of large wholesalers, but not good for your long-term gardening efforts. A copyrighted novel might go out of print, but can still be found in used bookstores or on ebay. I have scads of out-of-print books, CDs, DVDs, & vinyl records. Most of which I bought when they were OOP. When a plant goes out of production and no non-licensee nurseries can produce it...that's it. For all intents and purposes, that variety becomes unavailable at any cost to anyone. By definition, no one can sell one because there really isn't such a thing as a "used plant".

"..MAY.."

Well, sometimes more so than others, but patenting a plant is not something you do in a day. The requirements for patenting a plant mean that at least a decent amount of work has been done, or the plant wouldn't be eligible for a patent.

"They might be good for the bottom lines of large wholesalers, but not good for your long-term gardening efforts."

Many would disagree with that statement. There are two sides to this coin, but, without patents, many of the latest and greatest plants simply wouldn't exist for modern landscapes.

"When a plant goes out of production and no non-licensee nurseries can
produce it...that's it. For all intents and purposes, that variety
becomes unavailable at any cost to anyone."

I have seen reports of this problem a few times, but only in rare occasions. You could always contact the patent holder and ask for permission, or try to find someone that is willing to give away their plant. That would be legal, BTW, because the law precludes asexual reproduction, offering for sell, or selling but does not preclude giving the plant away.

When I think about it, the limitation on selling the plant that you paid for (not reproductions) is kind of weird. I kind of wonder why that provision was added in the law.

So an additional unit is purchased instead.

...but the same could have been required for copyrighted novels.

"So an additional unit is purchased instead."

Huh?

Well, sometimes more so than others, but patenting a plant is not something you do in a day.

You don't have to have made the hybrid with patenting in mind. Yes, the process of patenting itself is expensive and/or difficult. But that's a legal industry matter, not a horticultural one. I've seen patents for open pollinated seedlings. If I found a variegated Acer rubrum seedling in my garden, I can patent that. Since hundreds of them sprout all over the damn place, that certainly isn't the product of "great effort". It's more of an effort to prevent it from existing! (i.e., spraying them with roundup)

I have seen reports of this problem a few times, but only in rare occasions.

Just because we don't acutely "see" something doesn't mean it isn't a
problem. You can't "see" lead poisoning of inner city children, but
it's a problem. By definition - ANYTHING involving plant availability it isn't a problem most people are going to aware of...because 90% of the public buys plants without even being aware of what a cultivar is!!! Less than 10% of the remainder are going to notice the ebb and flow of cultivar availability. That leaves the 1% like me to even have a chance of noticing what is going on. (like the guy who tested the Flint water, even though the local bonehead public health idiots vouched for it being safe) The truth which I alluded to in my other post is that because patenting gives the license holder ultimate say so over plant availability (for the first 17 years)...the 'success' of that plant is more about their individual marketing motives or abilities and less about the plant's (i.e., cultivar's) ability to prove itself in the truly "open market" of non-patented varieties.

You could always contact the patent holder and ask for permission, or
try to find someone that is willing to give away their plant. That
would be legal, BTW, because the law precludes asexual reproduction,
offering for sell, or selling but does not preclude giving the plant
away.

Yes, obviously. They can say no and almost always will if they have something else they've mass produced that they want you to buy instead. And finding people and asking for freebies is not a viable approach in 99.9% of cases.

Many would disagree with that statement. There are two sides to this
coin, but, without patents, many of the latest and greatest plants
simply wouldn't exist for modern landscapes.

This is comical. How does the process of patenting bring them forth into existence? As I pointed out people have bred ornamental plants for hundreds of years without patenting them, and if plant patents didn't exist, they'd probably go on breeding them. Take the world of rhododendrons which represent one of them most intensely time consuming types of plant hybridization effort. No one bothers to patent their plants. Now you could say that's because it's a niche genus with small sales volumes but the work going into it is tremendous compared to various other genera. That doesn't stop it from happening!

ANYHOW, there's some latin phrase along the lines of "what I say is obviously correct, because it is so". If you go to a typical nursery, only a small % of the plants for sale are patented. And it's likely to remain that way, thank goodness. There's a kind of reversion to the mean where the market self-corrects and "decides" it isn't worth paying a license fee for most things living and horticultural. Greedy people can only invent so many solutions to problems that don't actually exist. What immediately springs to mind as the patented plant a punter is most likely to encounter is some junky maple hybrid for quick shade: verily I say unto you - I could not care less. Terra Nova engaging in "Heuchera racketeering" is an annoyance, but not something that's really cramping my gardening style. If anyone wants to give me some free 'Pewter Veil' - let me know LOL.

Or, here you go...https://www.google.com/patents/US20040210973

New and improved callery pear! Yyyeeeeee Haw!

brandon are you an aspiring lawyer for RIAA?

They would love to make selling used books and CDs (copyrighted, as you point out) illegal, but the Supreme Court has said "no dice". https://en.wikipedia.org/wiki/First-sale_doctrine

"If I found a variegated Acer rubrum seedling in my garden, I can patent that."

Actually, that statement is misleading. There's more to it that that.

"How does the process of patenting bring them forth into existence?"

Surely you realize that without patents, much of the efforts that go into producing the plants that have been patented would not have been economically feasible and would have likely never occurred. The plant patent laws was written with that in mind.

You are always welcome to breed new cultivars and not patent them, just as you are welcome to write your own novels.

"Take the world of rhododendrons which represent one of them most
intensely time consuming types of plant hybridization effort. No one
bothers to patent their plants."

More than 160 rhododendron and azalea cultivars have been patented so far.

"New and improved callery pear! Yyyeeeeee Haw!"

Does the existence of a poorly written novel mean that copyright laws should be abandoned?

"brandon are you an aspiring lawyer..."

No, do you think I missed my calling?

"Actually, that statement is misleading. There's more to it that that."

Yes, I'd have to claim I deliberately tossed some samaras on the ground, to find desirable variants of a weed tree LOL.

"Does the existence of a poorly written novel mean that copyright laws should be abandoned?"

Again, the ramifications of patenting plants have nothing to do with copyright laws applying to anything else...so there's really no point to repeatedly making the allusion.

"Surely you realize that without patents, much of the efforts that go
into producing the plants that have been patented would not have been
economically feasible and would have likely never occurred."

But again, the real economies of the nursery biz are (well, SHOULD be) tied up in producing quality stock, period. I bet there are hundreds of landscapes architects in this country who have never deliberately spec'd a patented plant but have deliberate chosen a specific wholesale nursery 9 times out 10. Because they just want the damn things to survive and look good! OTOH, nobody really cares what plant pressed their Adele CD. They have a failure rate of 1 in 10 million if that. In most cases the patenting of the plant isn't solving some genuine horticultural problem, it's just trying to attach some marketing tinsel to a variety that is only marginally distinguishable from any other. In rare cases a plant patent IS trying to "solve" a problem, like the rhododendron 'Francesca' which was supposed to be a pure red hardy variety, without the unsettling gray-magenta tone of 'Nova Zembla'. And it was probably partly successful on that front: for the non-hardcore rhodie collectors...not the hardcore ones, who by the 70s would already have been aware of other, superior reds for the northeastern US. But I'm citing that as an exception anyhow.

"More than 160 rhododendron and azalea cultivars have been patented so far."

And are still a very small portion of even that subsection of the market...and in some cases have helped to prove why it's bad for varieties to be patented and then rammed down the throats of the market. Plenty of reputable, family-run nurseries (not big box stores) probably stopped carrying at least some of the Encore azaleas, since they proved not to be as winter hardy as claimed.

But I think you're taking what I'm saying the wrong way.

I don't want to "do away" with the plant patent system as it is now. If someone wants to patent a plant. Fine. Good luck having it remembered in 100 years if that's your goal.

I just think it's kind of a joke as it is now - I mean as it is used by the industry: something that overall doesn't benefit the general public and CERTAINLY doesn't benefit serious horticulturalists like myself. It makes the focus about marketing instead of producing quality plants. Nurseries should "patent" a method of producing container stock that doesn't have circling roots...before they worry about patenting cultivars because they have some new aesthetic feature.

"Yes, I'd have to claim I deliberately tossed some samaras on the ground, to find desirable variants of a weed tree LOL."

Nope, you'd have to do quite a bit more than that!

"Again, the ramifications of patenting plants have nothing to do with copyright laws applying to anything else"

On the contrary, I feel I did a great job of pointing out the weakness of your argument with this comparison!

- - - - -

David, if you really feel so much animosity for the Plant Patent laws, why not write your elected officials.

"But I think you're taking what I'm saying the wrong way."

Possibly so.

"I just think it's kind of a joke as it is now - I mean as it is used by the industry..."

I'll agree with that. It probably should be reworked, at least. I only write about it here because I think people need to know what it's all about.

...and I guess in the light of what you just said, the improved callery pear example makes sense.

"Yes, I'd have to claim I deliberately tossed some samaras on the ground, to find desirable variants of a weed tree LOL."

Nope, you'd have to do quite a bit more than that!"

Nope, you're going to have to provide primary-source legal citation for what you're trying to argue. I'm not going to go find them, but I can absolutely assure you I've read plant patents along the lines of "1000 open pollinated seeds of Genus species cultivar were planted in a greenhouse row to select for variation." That's it. No more advanced technique than selection of variation.

"Again, the ramifications of patenting plants have nothing to do with copyright laws applying to anything else"

On the contrary, I feel I did a great job of pointing out the weakness of your argument with this comparison!"

No, you didn't.

I'll agree with that.

Well at least we agree about something!

First you need to find a licensed research lab.

Most labs request least 10 to run test on to create a DNA fingerprint

once you have your fingerprint for your tree you'll need to contact a licensing agent. They will dig through tree DNA fingerprints to see if yours matches any of them. If not they will file paperwork to be sent to government to deside to grant a patient or not.

If you're grafting trees most are under general patient to keep nurseries and tree farms from lawsuits cause it doesn't take much to graft a tree

"Nope, you're going to have to provide legal citation for what you're trying to argue."

No, it's information that's easily accessible for anyone that cares to look it up. A plant has to meet various requirements to be patented. Just throwing seeds on the ground isn't nearly enough, and you know it.

"No, you didn't."

Well, it really depends on what your argument was. It seems to me (even after your more recent comments) that you have more than one motive for your comments. The comparison was not the problem, maybe I misunderstood the reason behind your callery pear example.

- - - - - -

Maybe I am reading too much into your comments, but it seems to me that you have an irrational hatred for the Plant Patent Law. Personally, I am fairly ambivalent about it. Like the law that requires you to stop at a stop sign, I think it's important for people to know about the law, but I am fine with someone coming up with a better solution.

"If you're grafting trees most are under general patient to keep
nurseries and tree farms from lawsuits cause it doesn't take much to
graft a tree"

Bulldog, you've lost me there.

My very good friend patents most of his plants..main reason is they end up at AG3 to be tissue cultured and he gets his kick back from it when there sold. He has also said most times its not worth the price of the patent. There is also sooo many plants sold that are patented you will never get your money from its not worth the bother. Im sure if he tracked down every person on Ebay selling his stuff with out his say so or him getting his cut he would have far more in legal fees than he would have ever made to start with..Knowing him for many years and seeing his ups and downs with it I don't think I would go to the trouble myself.

miketropic, what kind of plants are they?

I'm having so many words put into my mouth on this thread I feel like the specter of Floramakros has reared itself for Halloween! I'm going to try one more time for posterity:

Clearly the notion that plants have to be DNA typed to be patented is utterly ridiculous and proof that people are pursuing some kind of FUD agenda about this topic, for whatever reason. When Rhododendron 'Francesca' was patented in the 1970s, how, pray tell, was it DNA typed? Did they take a cutting forward to 2005 in their time machine?

As for the steps involved...you plan/think out/conceptualize some plant you wish to create, you discover it through whatever technique is required from genetic engineering to growth of open pollinated seedlings, and you quantify why it is unique and submit a specific series of observations to prove that. End of discussion. I'm confident that the readers of this thread who "matter" will trust my account of things. I've read more plant patents than I care to admit and I have several times been quite underwhelmed by the degree of forethought that was required.

Also very clear, I have not implied I have some "irrational" hatred of the law itself. It's actually probably a good idea, and a necessary idea, to have plants be patentable. I have a very rational issue with the fact that they are very often implemented ONLY for the benefit of certain wholesale producers, and not home gardeners or horticulture at large. And that this pattern of implementation has a long-term negative impact on some aspects of horticulture. Yes, breeding a plant is a work product. For some plants like rhododendrons it's a very long a tedious work product since it could take at least 5 or more years for something to bloom. So you have to nurse along quite a few plants until you know you've made something worthwhile. But in the wider context of horticulture, that's only a small part of what actually has happened in the past to produce many core cultivar sets in every genera of plant. It takes years of being offered at nurseries in various countries, and climates, and to gardeners of many varying levels of expertise, before the "hive mind" of gardeners, gardening journalists, book writers, etc. declare something to be a time tested variety. The MARKETING of patented plants can upset this "ecosystem".

In the world of knowledge, a fungible "work product" doesn't die because it is copyrighted and goes out of print. It will be found in libraries as a rental copy, in stores as used copies, or even in stores as New Old Stock. I have bought books at the Daedalus store, which I joking refer to as the "Baltimore Book Pirates", that were brand new but 20 years old! (I suspect what they do sometimes is buy old stock that was warehoused in places like Taiwan, at the printer's facility, and never got a final shipment to the US distributor. I've seen shipping container trucks parked in their back lot. Of course this is legal, I'm kidding about the pirate aspect. They aren't actually commandeering ships. Someone like Timber Press is probably paying a monthly fee to those printers for storage, and is happy to have an obscure Baltimore bookstore take the problem off their hands without trying to get Barnes and Noble or Amazon into accepting just a few copies of something for sale.)

OTOH once a greedy wholesaler decides to stop selling one patented plant with the intention of moving everyone to another one and making more sales, a void is left in the ability for the "hive mind" I mentioned to continue to evaluate that variety. in 99+% of cases, it becomes impossible to obtain that variety anymore. Imagine if the Loder family had patented the Loder rhododendrons and I don't know...only said the landed gentry like them could buy them. (LOL) Guess what...they would have been overrun by their ponticum rootstocks and lost to history. Of course I'm being a bit farcical. In real life - maybe this upcoming account is what happened with Heucharas: maybe...I have no ability, interest in, or reason to have to prove it. Because the outcome was the same whatever their intentions. Maybe Terra Nova thought, "wow, this is a sleepy little genus but we know some forms have colored foliage and gosh darnit there's the potential for another hosta craze there. Let's patent some early colorful hybrids that grow well in gardens, so that they become part of standard landscaping material and people are addicted to them. People will see big beds of them in botanical gardens and want them. Then let's keep breeding them to the point they behave as annuals for most people outside the PNW, and cancel the sale of the old ones and prohibit anyone else from selling them. Then we'll have a real money maker on our hands!"

So, it is what it is. The real market, the "hive mind" as I call, can only tolerate so much of this nonsense. So patented varieties seem to be a 'flash in the pan' that comes to hugely affect certain genera LIKE Heucheras, for a while, but overall...compared to the scores of other things we have to worry about as gardeners, this is REALLY minor. I lose 1000X as much sleep thinking about the next plant disease to come along like Emerald ash borer. You might expect, for example, for this sort of thing to spread into daylily or iris subcultures. But again those have such long histories of ornamental breeding, any upstart deciding to patent his/her varieties would probably be looked at askance by his/her fellow hybridizers. THEY would realize, as I do, that it throws a spanner in the whole works of horticultural advancement. So I don't shop for plants and EVER have to think to myself "darnit, this variety is patented and I'd really rather not support such nonsense by buying it." It just doesn't happen, thank G-d. As I alluded to in another thread...even on the front of "sheer greed of people" there are other much more pressing issues. (in that case, the sheer greed of entire countries! Huge ones in fact!) Why they decide the genes within certain cultivars actually "belong" to them! Merely because they physically existed within that country! And kudos to the American institution that drew a line in the sand and said, "no, we aren't going to be shaken down by PC nonsense, even if it means we have to throw away a lot of work" which is what happened.

Actually, it's kind of funny that I've argued in favor of the Rhamnus cultivar 'Fine Line'. Which I believe was once patented. But again that was closer to being an "honest" plant patent in my opinion...it really did have a new feature and wasn't some attempt to takeover a whole genera for marketing purposes. And it's out of patent now anyhow. EDIT: a few more years left. I'm actually surprised it was from 2004. I was sure I'd read about that plant in the 1990s but I must be wrong LOL.

But it's the exception that proves the rule. As I scan my list of over 500 tree and shrub cultivars I've bought in the past 10 years, it is the ONLY one that jumps out to me as being patented!

What makes me crazy is that patented plants often have names registered or trademarked that are not the same as their botanical names. The botanical name is generally very uneuphonious and the trademarked name sexy and inviting (Cedrus deodara 'Monkinn' vs Feelin Sunny; Podocarpus elongata 'Monmal' vs Icee Blue. Monrovia likes to get that 'Mon' in there). The plants can only be sold by the patent holder under the trademarked name. Thus, there are plants on the market with either name and it gets confusing. Even lots of experienced gardeners find this situation bewildering and buy duplicates not realizing that they already have the plant in question. Then there are the growers who just flout the laws and willy-nilly give the plant a different name and IT ends up on the market.

And final BTW, Heucheras aren't the only genus were it happened. I think all the crazy looking Echinaceas in the past 15 years were patented too. And what has cropped up on gardenweb several times in the past 15 years? Threads about what poor garden performers some of them were. No surprise at all. The other places I see PP tags if I browse plants at a place like Lowes (hardly ever buy but good to know what is going on in horticulture!) are various odd cutting grown annuals or "temperennials". I don't find that quite as annoying because they are such a niche item to me and I hardly ever buy annuals for my garden besides vegetables. But for all I know there's some Southern California Pelargonium collector out there who is annoyed some formerly patented variety has become impossible to find. I used to have a cute spoonbill chrysanthemum that was patented by Yoder but being sold, GASP! - by an old man from the Chrysanthemum Society at a NoVA plant sale in the early 2000s. It finally died off, and now I have a more garden worthy non-patented spoonbill!

Yeah, Sara, I hadn't even bought up the naming nonsense. I'm not sure why it's done except as some additional protective measure...to extend the ability to market the plant. I can say in my childhood/teenage garden I had a time-tested Euphorbia X martinii sold by the old Roslyn nursery on LI that did fine for years. When I moved here in 2006 I promptly bought a cultivar of the same grex that was name-controlled and patented. The plant did terribly and was dead within a year. Once again an intensely marketed, patented variety failed. Guess what folks? Quality non-patented cultivars MARKET THEMSELVES. But in the process they might not make some person, somewhere, as much money as they could possibly make. Thus by the tenets of advanced capitalism...some people respond with this "I better patent something and call it an improvement" marketing BS. I'll keep buying plants vetted by non-MBAs, and I recommend others do so as well!

David ha ha ha I actually have an MBA myself! But that doesn't stop me from getting frustrated by the naming nonsense and other aspects of plant marketing. I do want to do anything that helps growers produce quality plants and I am also in favor of educating the general public but randomly patenting plants doesn't really seem to be the way to do it. However, Sunset seems to be doing a fairly good job of their selections - they are branded and marketed with a consistent look and feel and are generally climate-appropriate here. If that helps locals get away from their stubborn attachment to plants that really don't work well here (Philadelphus, Spirea, etc) I think that's a good thing. But that effort goes way beyond just patenting plants, it is a consistent program that has a theme and a purpose.

I really appreciate all the feedback. I had/have very little knowledge of the whole situation, so I'm glad to get some perspective from you people who know your stuff and have lots of experience.

Sad to realize, during the time it took me to read this thread, 28 new Hemerocallis cultivars were introduced. And 16 Hostas.

Sara well sorry if I seemed to be MBA bashing...but you obviously got what I meant!

In the case of the Sunset selections though, are they actually patenting them? Or are they merely branding them? I have no problem with the latter, because a collector's nursery still has the option of selling the plant if it is worthy to be sold to collectors. Without the Sunset branding.

"Sad to realize, during the time it took me to read this thread, 28 new Hemerocallis cultivars were introduced. And 16 Hostas."

LOL tom. But...at least with my dipping of my toes into the waters of collecting strange daylilies - none of them patented. (I spent a couple days back in the spring shopping for various spider form ones, when I suddenly had a fit of desire for them. Did not see a single patented variety, even though some new cultivars were selling for over 50 bucks. I bought some slightly older ones, like the amusingly named 'Chesapeake Crablegs')

Jawbreaker cultivar names are coined to reinforce use of the more accessible marketing terms (trademarked and patented names), which are what those owning legally controlled plants use to underscore their claims. Also as mentioned they often include themselves in the jawbreaker names, such as Monrovia with it's "mon" cultivars and Lake County Nursery with its "zam" plants (after owner Jim Zampini).

Attaining legal ownership of a new plant is a way to get back development costs, as well as assure profitability from future sales. These operations are businesses, not public charities or hobbyist pursuits. If they don't take steps to keep themselves in the green - so to speak - then they go under. Of course they are often disinclined to select, develop and bulk up new plants and then just give them to the marketplace, as it were, for other companies to immediately take hold of and start generating action with that the originating (or at least introducing) parties never get a piece of.

As was also brought up previously even with the patenting and trademarking system being in operation nurseries steal owned plants by growing and selling them under different names. I know of two wholesale operations just in my own comparatively production nursery free area (the Willamette Valley it ain't) that have clearly done this with more than one familiar introduction.

The family friend that had a commercial interest interfere with his patent attempt made it sound like such entities are watching all the time; his description of the details involved did make it sound like the ruling in their favor might have been questionable, with his invention perhaps not really completely duplicating theirs.

"patented names"

Names aren't patented. Plants, patented or non-patented ones, can be sold using trademarked names. You can even sell different plants under the same trademark name. For instance, if I wanted to sell heuchera, I could provide Brandon's Awesome Red Heuchera and Brandon's Awesome Purple Heuchera. I could trademark the Brandon's Awesome part of the names. Unless I had also patented the cultivars I was selling under those trade names, another grower could sell the exact same plants using their real names, or, another trademarked name. Oh, and BTW, that adds even more complexity to what Sara mentioned...some plants actually have more than one trademarked name.

I see the marketing importance of using Trademarked names, but, as other already mentioned, it does ad confusion in the market.

U.S.P.T.O. patented plant descriptions refer to these patented inventions by cultivar names, with titles like "A rose plant named '_______'. So a patented name in this context is the name of a cultivar that has been patented, as opposed to one that hasn't.

Maybe if I had written "patented plant names" you would have liked it better.

And then there's trademarks and there's registered trademarks. These are two different things, both in use by nurseries claiming rights to plants.

Brondon what i mean by that statement..

if he is just grafting different roots,branches,foliage..ect

it may look like a new tree but it didn't change the DNA he just added to the chain. If he took it to a lab they would see a longer DNA fingerprint they could split in half an tell what was done to the tree.

Takes a long time for graft work to change DNA..one why he can tell if he is on to something is replant the seeds if it comes back the same then he couod be on to something. If it grows back as a standard tree depending on what he used then it's under general patient laws cause anyone can graft a tree

Most patients on tree are trees that where found in a forest that some how crossed with some other tree and dropped it's seeds creating a new type of tree..or they're stuck in a lab for years on years doing mad scientist stuff chemically removing DNA cells

I think it is very restricting to patent a plant. I also find the names to be misleading, like autumn blaze maple, knockout rose, and the black diamond crepe myrtles. If you are looking into the patent, use the cultivar name to avoid confusion.

acer freemanii 'Jeffersred' (this is autumn blaze maple, why not 'autumn blaze'?)

rosa 'radrazz' (this is the knockout rose. The southern living grumpy gardener wrote a funny article about the cultivar name. Is radrazz even a word?)

lagerstromeia indica 'best red' (there are many different cultivars marketed as black diamond, this is the one I have)

See, aren't those confusing?

Just to be clear, the name of a plant on a patent is the real name of the plant. It should be the actual/true cultivar name. I have actually seen the trademarked name included on a patent in addition to the cultivar name, but that's unusual.

David that is an interesting question about Sunset. I will have to check on that. They certainly brand them and in the case of the one that I just looked up, Ligustrum sinense 'Sunshine', it is patented but I don't know by whom. They have a big display garden near here (when then sold the Menlo Park headquarters they moved their test kitchen and gardens to Cornerstone in Sonoma) and many of their collection is on display. As much as I am not a big Sunset fan, I have been impressed with the consistency and appropriateness of this program. Their installation at the San Francisco Flower and Garden Show was also well done. I'll root around.

"I think it is very restricting to patent a plant"

That is precisely the point!! It is done to restrict or limit the distribution and sale of the plant without the breeder/patentholder's permission and proper compensation. And to keep farmer's market sellers - and you know who you are - from making money off a patented plant that they are not entitled to!

Autumn Blaze etc. are selling names (as they call them in Britain) and not the names of the plants. This is what operations so inclined do now, they use one name (the cultivar name) for the plant and then another designation(s*) to sell it - which strictly speaking is not the name of the plant.

A partly equivalent example still within the gardening realm is glyphosate herbicide being sold as RoundUp, CleanUp etc. The chemical is glyphosate - for our purposes this would parallel the cultivar - and RoundUp and so on are selling names (in the case of the herbicide it is complicated by it being used in mixtures).

Or if is more apt this could be seen to be like gelatine vs. Jello and so on through thousands of brand name products. Because trade names do not actually refer to the plant itself more than one may sometimes be in use by different sources for the same cultivar. Among decorative garden plants this circumstance seems to be recurring among roses in particular.

*For instance among items prevalent at garden centers there is the Endless Summer line of hydrangeas wherein a growing assortment of individually distinguished named cultivars - often not necessarily related to one another - are marketed both as members of this trademarked Series as well as with the use of separate trademarks for each. So then the widely grown flagship plant of this scheme - when given the full (or nearly so) treatment - is referred to as Hydrangea macrophylla Endless Summer The Original ('Bailmer'), with Endless Summer being the trademarked Series of hydrangeas, The Original being the trademark being used to sell this particular cultivar, and the cultivar being 'Bailmer'.

"(S)elling names (i.e. trademarked names)...strictly speaking (are) not the name of the plant."

Well, that's more or less true, but I'm not sure I would word it that way. For example, in my example above, Brandon's Awesome could be the trademarked name and, when combined with Red Heuchera, would refer to the specific plant...Brandon's Awesome Red Heuchera. So, I would say that Brandon's Awesome Red Heuchera was the name of the plant.

I guess you could extend this to the Roundup example by saying the the complete name of a specific RoundUp formulation (e.g. Roundup Concentrate MAX Control 365) is the name of a specific product while the word Roundup is the part that is trademarked).

Another thing that makes all this even more confusing is that some sellers try to tie the trademark name to a specific plant and call the plant only by the trademarked name. I've seen some impassioned complaints about this. It's a complicated world out there...

Well it seems that

USPTO maintains a clear position that varietal or cultivar names cannot be registered as trademarks

http://www.planthaven.com/pdfs/PatentFAQ.pdf

And, that would only make sense because for a trademark on a name to remain valid, the holder has a legal obligation to reasonably protect the name from becoming generic. If the cultivar name was trademarked, the holder of the trademark would not be able to do that. It's not like they could keep people from calling the plant by its real name.