Hi, good evening, it's Jason from Fraser Valley Rose farm
I had a chance over the past couple of days to go through some old picture tags from plants that I planted in my
Garden over the past couple of years. And you know what I found printed on nearly every single one of them?
It's a statement that goes something like either
"asexual propagation prohibited" or
"Unlicensed propagation prohibited" or some of them just list "Plant Patent Applied For" (PPAF) and I wondered does the average home gardener
Even know what that means or how it applies to them. Is it even intended to apply to them?
So I thought I'd go through my understanding of plant patents and pass that along to you
So first things first, the analogy I would make is to compare
The plant patents a bit like the copyright on a DVD or a CD
So you buy a DVD you
have a physical copy of a movie and
You can do whatever you want with that
You can take that and you can watch it as many times as you want in any device that you want you can
Store it in the freezer. You can burn it or throw it away when you're done with it
But it's your physical copy. The one thing that they don't permit you to do is
to take copies of it and
Distribute it to your friends or even people you don't like so you're not permitted to make copies of it
That's the same thing with plants
It's a different law that applies. It's a patent versus copyright, but it's the same basic thing about intellectual property
the plant breeder
or Discoverer( because it can apply to
Plants that are discovered in cultivation as well)
But those people have put in some work on this plant
it took some talent to spot it if they just discover the plant and
also
They have to test it and make sure it's stable and then put it to market
also, if you've done a breeding program, I mean it takes massive amounts of hours, so
they do the breeding the cross pollinating
Thousands of seedlings go in and then evaluate evaluate evaluate what they have
If they've done it right is something that can take to the Patent Office and say "I've made a good variety
that is different than what's on the market right now" and if they're
Granted a patent on that they're given a period of time in
Which nobody else is allowed to make copies of that plant by
asexual means the period of time in
Canada the United States for most plants is 20 years and
I thought it circled back just a half-step here and say what they mean by
Asexual propagation because they're not talking about saving seeds. That would be fine. What they're talking about is
taking cuttings
dividing by taking root divisions tissue culture
Anything like that where you end up with a plant that is genetically identical
It's the original plant that is not permitted
so legally, I think that's the long and short of it but I should say one other thing here is
if you take your legal advice from YouTube, you're kind of a fool, even if it comes from an honest looking guy like me, so
if you're planning on doing some propagation and
you have some questions about
Licensing and that sort of thing you really should get better advice than this, but that's the long and short of it
So I did want to go ahead and start talking a little bit about
the
Home gardener because frankly it's a little bit like the tag you find on a mattress
where they say do not remove this tag. for the home gardener the
"Unlicensed or asexual propagation prohibited" really isn't something that they're worried about from you
I'm not saying that you're permitted to do. So what I'm saying is that you're not the target of that statement
They're really talking about people who are taking cuttings or propagating to distribute or sell for profit
So let me start with the most innocuous possible example
Let's say you went out to the garden center and you purchased a perennial you put it into your garden
It had that tag on
"asexual propagation prohibited"
but it did really really well in your garden and just in the course of gardening if
It gets to be a big patch what you would probably do out there
It's what I do is
in the fall you go with the sharp Spade and
You would divide the clump into two or four and you distribute it around your garden. Well, technically
You don't have permission to do that
but
Let's just say from from a moral standpoint. I don't think you could feel too bad about that. You're not depriving anybody of
Income you're not distributing it. You're not causing a problem or any lost income for anybody and
practically speaking in addition
let me assure you that there's no such thing as
the plant patent cops who go from yard to yard talking to gardeners and
making them prove that they haven't divided or taking some cuttings of
A few of the varieties and then just spread it throughout their own yard
However, let's go to the next example. Let's say you took cuttings of a variety and
You gave it to your brother and gave it to your sister
Donated it to the local plant sale for your Garden Club
Then I think you've crossed kind of a moral line there and they still might not be able to find you out
They still may not be able to
enforce it
But from my point of view as soon as you've distributed to other people who might otherwise have bought that variety
You've deprived those breeders or those discoverers of the proper income
That would have come from licensing that plant for propagation to another grower
Okay. So let's go to the final scenario here where let's say you are a backyard nursery like me
and
there are lots of varieties out there some of which are past their patent period
some of which never were patented and some of which are still within their patent period and
Indiscriminately you go around and start taking
cuttings of these dividing these and putting them out
selling them like I do at the farmers market or
Anywhere else and you've kind of taken a haphazard approach to other people's intellectual property. I would say
Again, your chances of getting caught are fairly low, but please don't do this
Especially if you're trying to build a business for yourself
Like I do
You know, I'm careful. I don't want to ruin my reputation
And that's one thing and I don't want to do the wrong thing. I
Guess eventually if you scaled up enough, which is my hope is to make my business a little bit larger over time
You could actually get to the point where it would be worth their while to enforce those
Patent provisions and they could press a civil suit against you or something along those lines. I don't know exactly how that would go
But I don't want to find out and again, I don't want to ruin my reputation in the meantime. That's kind of a
bad
Actor within the space of the horticulture community, especially since I also have a job there as well
I want to go through one more thing, but I might go on to my computer here and just show you really quickly
Because the tags are printed at a certain time and these patents do run out
So what you need to be able to do if you're considering propagating a plant like I propagate roses all the time
what I need to be able to do is find out when that patent period started or where it was introduced and whether I
now i'm allowed to
propagate from it
I'm back here on one of my favorite sites. You know it this is "Helpmefind roses"
I thought that first check out a
rose that i'm a hundred percent sure is
Still covered by patent
That's Koko Loco
got a few requests for that one recently and
Scrolling down here. It's great that they have collected the information into one spot here. So you'll see this one was registered in Australia
in
2015 and
In the United States in 2012, so we're still many many years away from this one
being out
patent period and
for that intermediate time if I have plants that I want to be able to sell to people and
I am not permitted to propagate them. I probably won't even go through the trouble of getting licensed
what I'll do is I'll just buy them from the wholesaler and
Resell them and just let people know that that's how I came across them
Most of my roses here are own root roses
That might mean that this one is bare-root purchased from a supplier
but my customers will understand that if they're looking for an interesting new variety, I
wanted to go back to one other one here that I'm quite sure is now out of patent period
This is one called Fellowship
And if you look down here
It says that the most recent
listing of any
Patent applied for or granted is 1996
So this is quite a nice variety of rose
Fellowship I've posted some pictures of this one
And the most recent is 1996
Which means I feel relatively safe saying that that one is outside of patent period and I can go ahead and propagate that
And if you want to be sure
On some of these you can actually take the patent number that's across the bottom here and
Plug it into Google and it'll tell you so for instance on this one here. This is Koko Loco
That's the code name that they've used for it there
but
It actually goes through the description
Of the patent and everything else. So that's kind of nice that you can look that up on Google
Another one here and I'll show you is if you ran into
This beautiful hydrangea, you know the patterns on there and I saw that one I thought hey
I gotta see if I can propagate that or whether to purchase that and
That there was registered or introduced in 1996 meaning now. It's
2018 that's over 20 years later. I
Am NOT a hundred percent sure, but this is a good starting spot
To begin with to know whether you're even in the ballpark of being able to propagate yourself
Whether you want to buy it from a licensed
grower or
How you'd want to go about it?
Alright, that should wrap it up for me. Thank you so much for watching my video today and
If you have any questions, please leave them down below