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What do I need to know about propagating plants to sell?  RSS feed

 
Posts: 2
Location: Eastern PA
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I'm looking for information, suggestions, or resources, about what I should know legally about propagating plants sexually or asexually.  I want to try to maybe sell plants on craigslist or whatever using my stock from around my yard.  What is an easy way to find out if a plant is patented?  As in, what can I type in to google or another website.  Are there any ways to buy plants, so I don't have to worry about whether a plant is patented or a name is trademarked?  Anyone have experiencing doing this on a small scale at their home?  Would you recommend craigslist or some other means to sell plants/seeds?  Any plants/seeds in particular that sell well?



An example of this plant patent issue is the cornelian cherry dogwood that I bought from Stark Bros.  On it is a tag stating that asexual propagation for home or commercial use is forbidden.  When I ordered it, it didn't strike me as a patented variety, and it didn't really have a name other than cornelian cherry dogwood.  Which I figure is a generic common name. 


Thank you for any constructive responses.


Steve in PA
 
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Patents only last 20 years. So you may presume that any plant variety that was first released more than 20 years ago is free from patents and fair game for propagation. A corollary to that, considering how the world swings these days, is that chances are pretty good that any recently released varieties are patented, even if the nurseries and catalogs who are selling them go to great lengths to hide the fact that they are selling patented varieties of seeds or plants. Deal with heirlooms only, and there are no patent issues.

Trademarked plants, that are off patent, are easy to deal with: Just abandon the trademarked name, and call it by it's common name. For example, rather than selling KAMUT® Brand wheat, call it by it's common name of Khorasan wheat.

Even though a tag might say that a variety is patented, you may be able to contact the patent holder, and get permission to propagate the variety in return for sending royalties to the developer.

Tomatoes are the most popular potted plant in my area.
 
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I only took a quick peek at the site, so I don't know how easy a search would be, but it is the place to find out if a plant is protected by patent.

United States Patent and Trademark Office
https://www.uspto.gov/patents-application-process/search-patents



By the way, it looks to me that Stark Brothers selects a variety that is under patent, then sells it under a name that they have patented.


I think you are on the right track, avoiding patented plants, so many rules and regulations. As an example, here are the hoops nurseries have to jump through to sell Proven Winner plants, propagated by a liscensed producer. Sounds like a headache to me.

Proven Winners Customer-Grower Agreement
https://www.provenwinners.com/sites/provenwinners.com/files/images/professional/growers/customer_-_grower_agreement_for_2017-2018_-_us_final.pdf

 
Joylynn Hardesty
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And an excellent article from a fellow permie about starting a nursery business.

http://www.twisted-tree.net/starting-a-nursery-business/
 
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I am really glad this question got asked here.

I didn't realise it, but after reading the twisted tree article it's very clear; my way out of the city lays in improving my propagation game, something I have already been looking at for some time now.

My much better half and I have been starting avocado pits in specifically designed handblown cups, and then larger orbs, since we've been together, originally for an art installation. It has since taken on a life of its own. We have an accompanying jungle of houseplants that just seem to multiply, almost of their own accord. I have given spider plants away because I barely had room to pot up the babies.

This is encouraging. I would love to hear of others' experiences and concerns.

-CK
 
Joseph Lofthouse
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Joylynn Hardesty wrote:By the way, it looks to me that Stark Brothers selects a variety that is under patent, then sells it under a name that they have patented.



Stark Brothers is selling things with trademarked names. The patents may have expired long ago. So if selling those varieties is important to you, find a printed catalog that is more than 20 years old, and see what was listed back then, and sell them by a common name, not the trademarked name, and don't ever mention Stark Brothers in your marketing. (Or do other research to find out when those varieties were originally released.)

I take a different strategy. I boycott any nursery, or company that presumes to patent life.
 
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I looked up apples, only in the Stark Bros catalog. because I seemed to remember seeing credits, this is what I found:

Ginger Gold is a registered trade name of Adams County Nursery, Inc. on page 6 of the 2018 catalog.

Crimson Crisp is being offered under license from Adams County Nursery, Inc. on page 6 of the 2018 catalog.

Jonagold A licensed variety of Cornell University, on page 6 of the 2018 catalog.

Freedom A licensed variety of Cornell University, on page 9 of the 2018 catalog.

Cortland A licensed variety of Cornell University, on page 9 of the 2018 catalog.

Liberty A licensed variety of Cornell University, on page 10 of the 2018 catalog.

September Wonder Fuji September Wonder is a trademark of C&O Nursery, Inc. on page 10 of the 2018 catalog.

"Co-Op 31 Winecrisp" May be covered by USPP #20,437 or other patents. on page 10 of the 2018 catalog.

Stark Bros Exclusive Snappymac USPPAF 'Gunnison' cultivar on page 11 of the 2018 catalog.

Empire A licensed variety of Cornell University, on page 11 of the 2018 catalog.

Kindercrisp May be covered by USPP #25,453 or other patents on page 11 of the 2018 catalog.

Candycrisp May be covered by USPP #17,284 or other patents. "Greiner 1198' cultivar on page 11 of the 2018 catalog.

So, I see three different references above. Under license, a registered trade name, and covered by ## patents. In some cases the particular name is trademarked, in some cases the cultivar is patented. Where it says under license from XX you'd have to contact the organization referenced. As you can see there doesn't appear to be an extra charge made to the buyer of the seedling. Apparently Stark is willing to pay a small fee to sell the variety or cultivar because I assume they think that item is of enough merit to make the charge worthwhile. It's my opinion that in most cases the charge is about $1, more or less. However I once found a new apple variety that the growers of Rome apples in Ohio had developed, I think it was <blank>crisp. I tried googling it and can't find the story. The reason I bring it up is that they want a small fee per year into the future. To me, it's not worth the bother of mailing some guy the 20¢ a year for the one tree I'd be interested in. And then they are only selling it in multiples.

I only looked up apples in the Stark catalog, no other items. And if you take what I say as gospel without looking up what I say then you're responsible for your mistake.

Another thing I googled "Jonagold apple history" and I got this across the top of my search results: Jonagold apples originated in 1953 at the New York State Agricultural Experiment Station in Geneva, New York. My reason for bringing this up is that 1953 seems to me to be more than 20 years.

I would say that you need to make a decision as to what items to sell. One of the things you need to analyze is what do your potential customers want. If your apple customers want the apples above, for instance, then you might just have to make up your mind to pay the royalties, or fees to the appropriate place so that you can be comfortable selling what you need to. After you go to the trouble of grafting and raising your rootstocks and or seedlings. It might make life easier doing the right thing. It can be very expensive paying attorneys and expert witnesses to defend a lawsuit. And then you'd lose your good name. Remember this: it's your customer who will ultimately pay the royalty. But I have to admit that I don't know the way paying these fees goes. Do you pay them when you do the graft, or only after you've made the sales. This is important if you have to pay a royalty on unsold or dead trees.

I hope I'm not scaring you off your dream. Good luck.

edited: while I wrote this I got logged out, when I recovered it the first sentence got truncated out, and possibly more??

 
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