There is a Propagation forum here if you wish to pursue this further. But in general, a plant may be patented for a period of 20 years. And until that patent expires, any asexual (non seed) propagation is prohibited unless one purchases the rights to do so from the original patent holder. So any cuttings, layerings, grafting or divisions for anything other than personal usage - are prohibited.

Prosecution under this statute is rare and proving a case is tricky at best. I'd let them threaten :-) If their financial situation is so dire they cannot afford to pay for the plants they received, they certainly will balk at the expense involved in filing a lawsuit that is unlikely to be pursued with much vigor! An alernative is for your hub to contact the patent holder, explain the situation and pay for whatever propagation rights might be involved. If he intends to sell more of these plants, that is something worth pursuing. All plant patent data, including the initial filing with all involved parties identified, is available online with a search.

The very first thing I would do is research this plant and how and when it was patented....if at all. A great many plants are never patented.

Plant Patent Information

A patented plant is one in which the variety has a specific proper name, such as "Golden Delicious," for example, if it was an apple. Did your husband sell the plants as a specific named variety? To do that legally, he would have had to purchase rights from the patent holder of that variety. If he just sold the plants as "apple" (as opposed to 'Golden Delicious' apple) then he is selling a species, and owes no one anything for that. Unless your husband specifically sold the plants as a named variety, the buyer is bluffing to instill fear in order to scare your husband from collecting what he is owed.

Sometimes, people innocently make cuttings of patented, named varieties without knowing that they are patented. If they don't know it, they would not sell the plant claiming it is a named variety. It is still not legal to do this, but it would be very hard to be caught. The plant would have to be DNA tested in order to prove that it was, in fact, the named variety.

Your husband should figure out if he sold a patented plant, or not. If not, he is completely innocent. If he did, then that is fixable, as Gardengal mentioned. The amount of plants and money involved would have bearing, too. Are we talking tens ... hundreds ... thousands?

Oh my goodness thank you so much for your quick responses. The plant was patented. The crazy thing is, the patent expired last March, right before the plants were delivered. Can I still find a patent holder if it is an ex-patent holder? Do you have any idea how much this would be per plant? We have quite a few acres planted.

Gardengal48, you’re my best friend tonight (: I’ve found the name of the patent holder on Google search, but I’m not finding how to contact them. Any ideas? Just to be safe, to be really sure of what we respond back to this guy I’d like to know we’re in the clear. Since my husband purchased plants 3 years ago or something that were at that time patented (though he did not know and was not told), and then made an agreement with someone during the patent period and was paid during the patent period, but the plants were delivered and planted after the patent ended, you think this is moot? That would be amazing. Again, I’m so sorry to be continuing to bother tonight and am so grateful for your help.

Gardengal, where does the "personal usage" exemption come from, in regards to plant patents? I haven't found anything to support that, and have frequently heard that ANY asexual propagation of a patented plant is prohibited, even if there is no sale or distribution involved.

I am not an attorney and to be absolutely sure, you should check with a patent attorney to confirm. But I doubt you have anything to worry about with an expired patent. At most, you might need to pay a modest financial settlement to the former patent holder for the plants sold (and you actually received payment for) before the expiration but the patent attorney is the one to go to (rather than the patent holder directly) as he has all the legal ramifications readily at hand. It may take just a phone call :-)

Yes, we are absolutely working to contact an attorney, so I won’t hold you to anything. I just was looking for any initial direction and you’ve been able to give that to me, thanks.

illsstep, it is not written into the patent law but no one is going to bother to prosecute a homeowner for growing a patented plant from a cutting or a division for their own personal use. It happens all the time :-) The patent protection was intended to protect the breeder from unauthorized propagation of a unique and expensive plant by commercial growers who intend to make a profit from it. And that happens often enough as well, by unscrupulous growers who market the plant under a different name. But as Yard mentoned, without DNA testing, it is very tough to prove.

Unfortunately, it wasn’t just for personal use for my husband. I think I mentioned above that he purchased the plants planning on selling the berries, and also sold some cuttings (though this was not initially the plan) just to help this guy out who wanted to get started in the business. We are completely willing to pay whatever we need to to get things legal and to get this guy off our back, but if an attorney says it is not necessary as it’s expired that would be nice, too.

Being a professional lawyer would positively take all the fun out of offering free legal advice. My thoughts about homeowners propagating plants for their personal use, or for friends -- plants that never pass through a public marketplace -- is the same as Gardengal's ... that there is zero chance of their ever being taken to task for it. It would be equivalent to being prosecuted for making one's own bread at home, but without any delicious smell to alert neighbors (in case they wanted to report you to the authorities.)

HU-395422572, if you are able to reach the lawyer, or a lawyer, and get squared away with a definite outcome, I hope your report back to the thread as to how, exactly, it came out. That your husband BOUGHT the cuttings, instead of making them himself, has me wondering if the payment has already been made to the patent holder through the initial sale. I'm not familiar with how the process works through the chain, but I'm quite certain that the patent holder is paid only once per plant, not multiple times each time the plant changes hands. For example, sales taxes are collected from the customer when an item is sold retail. But there is no sales tax levied when it is sold to the retailer by the wholesaler. When we buy patented plants at the local nursery, there is never a patent holder standing by waiting to be paid. The collection takes place somewhere within the wholesale or "manufacturing" phases. I'm imagining that it would be at the first opportunity ... the person who cut the cuttings. If you find out anything, let us know. (So we can keep giving that free legal advice.)

Hi all,

Late in responding to this, but this is how this ended up playing out, just in case anyone else finds themself in a similar situation.

As many of you commented, it ended up being a moot point. I spent one day calling the US Patent Office, various patent attorneies, and finally the office where the patent was originally filed through. All people I spoke with agreed that our business acquaintance had no leg to stand on and would still be required to uphold his end of the bargain (payment to us). We, for our part, did have to contact the patent licensee, spoke with him, and did pay him back royalties (which ended up being .20/plant or so). We did everything we needed to do on our end to make us legal. It was actually quite painless after I found the information and answers I needed and everyone was quite friendly and helpful. Thank goodness.

A big thank you for all your answers above, as they were what originally gave me hope that there might be a way out of this without putting our entire farm into mortgage! Thanks so much.

Thanks for the update. I hope you are able to get payment for your stock, especially on account of all the bother.