Plant Patents And Propagation – Is It Okay To Propagate Patented Plants

Plant Patents And Propagation – Is It Okay To Propagate Patented Plants

By: Teo Spengler

Those who develop unique plant cultivars spend quite a bitof time and money doing so. Since many plants can be cloned through cuttings,it isn’t easy for those plant developers to protect their products. One way forplant breeders to protect their new cultivars is to patent them. You are notallowed to propagate patented plants without the permission of the patentholder. For more information on plant patents and propagation, including tipson how to avoid violating plant patents, read on.

What are Patented Plants?

A patent is a legal document that gives you the right tostop other people from making, using or selling your invention without yourconsent. Everyone knows that computer designers and automobile manufacturersget patents on their inventions. Plant breeders can get these patents, too.

What are patented plants? They are unique plants developedby breeders. The plant breeders applied for and were given patent protection.In this country, plant patents last for 20 years. After that, the plant can begrown by anybody.

Plant Patents and Propagation

Most plants propagatewith seeds in the wild. Propagation by seed requires that pollenfrom male flowers fertilize female flowers. The resulting plant may not looklike either parent plant. On the other hand, many plants can be propagatedby rooting cuttings. The resulting plants are identical to theparent plant.

Plants that have been specially engineered by breeders mustbe propagated by asexual methods like with cuttings. It is the only way you canbe certain that the new plant will look like the cultivar. That is why plantpatents are based on permission to propagate patented plants.

Can I Propagate All Plant?

If you buy a plant, it’s easy to think that it’s yours topropagate. And many times, it is perfectly fine to take cuttings and createbaby plants from purchased plants.

That being said, you cannot propagate patented plantswithout the inventor’s permission. Violating plant patents is against the lawand a form of stealing. You’ll want to learn how to avoid violating plantpatents if you buy patented plants.

How to Avoid Violating Plant Patents

Avoiding plant patent violations is harder than it sounds.While it’s easy to understand that rooting cuttings from patented plantswithout permission is illegal, that’s just the beginning.

It is a violation of a plant patent if you propagate theplant in any asexual way. That includes rooting cuttings from a patented plant,but it also includes planting the “daughters” of a patented strawberry mother plantin your garden. Seeds can also be protected by patents. The Plant VarietyProtection Act of 1970 allows patent protection for unique seed varieties thathave not been sold in the country for more than a year.

So what’s a gardener to do and how does one know if theplant is patent protected? Check the label or container the plant is in.Patented plants should bear a trademark (™) or patent number. You may even seesomething that says PPAF (Plant Patent Applied For). Also, it may specificallystate “propagation strictly prohibited” or “asexual propagation prohibited.”

Simply put, plants can be expensive and propagating them isa great way to have more of your favorites without the added cost. While it isa good idea to seek permission beforehand, in most cases, though technicallyillegal, the plant police will not show up on your doorstep for propagatingyour own plants for personal use. That’s the key point…you CANNOT sell them. Ifyou intend on selling patented plants, think again. You can and will beprosecuted fully.

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Read more about Other Propagation Methods

Methods of Propagating Basil

If you live in USDA Hardiness Zones 6-13, you can probably find basil at your grocery store in the spring and summer, and possibly into the fall and winter.

You know the type I’m talking about, right?

Those little packets or pots of “live basil plants,” complete with dirt and root balls? The ones you buy in the fresh produce section that say “store in the refrigerator” and are not specifically intended for planting?

Here’s a secret you should know: you can plant them, but these basil plants aren’t really one plant at all.

Supermarket basil is often a manufactured root ball comprised of a number of seedlings. This makes it look like an extremely healthy plant with scads of leaves, when really it’s a few different plants smushed together.

It’s a smart and inexpensive marketing tactic. And it’s fine for shoppers who are going to use all the leaves at once to make their own pesto, like this one from our sister site, Foodal.

But it’s bad news for beginner gardeners, who often try to plant this deceitful root ball at home only to watch it die within days. All the roots start competing with each other for water and sunshine, and none of them win.

There’s a silver lining here, though. Now that you know the secret of store bought basil plants, you’re equipped with knowledge to help you successfully propagate your own at home.

First off, this herb isn’t a plant you’d typically divide because it’s so easy to grow new roots from a cutting.

With supermarket basil, though, as opposed to nursery plants, you’re not truly dividing one plant. You’re separating all those squished-together roots into separate plants that can actually grow and thrive.

  • 1 supermarket plant (live herbs with roots, sold in the produce section)
  • Soil-based potting mix
  • Scissors
  • Plastic or ceramic pots at least 5 inches deep with good drainage (a draining hole) and saucers

First, gently remove the plant from its original container and lay it on a clean surface.

With your fingers, pry the root ball into two halves. Then divide those halves again and cut off weak or leggy shoots so that you have separate clumps with 3-4 leafy shoots per clump.

Plant each clump in its own container with fresh potting soil and water it with lukewarm water.

Basil likes to stay warm – hence the tepid water – and moist, yet well-drained, so give it water every other day or so for a total of 1-2 inches per week. Pour the water on the soil and not the leaves to avoid fungal problems.

Dump any liquid that leaks into the draining dish after each watering. The plant will take what it needs and let the rest drain, and you don’t want your plants to sit in waterlogged soil. This herb thrives in moist, well-drained soil, but it doesn’t like wet feet.

Finally, make sure you give each pot a spot on a sunny, south-facing windowsill.

If it’s not summertime, you may want to invest in a grow light. I like this one, available from Amazon. It’s a dual-headed clip-on gooseneck lamp, which means I can clip it on the windowsill and point it directly at my plants.

I can even point it at several plants at once, thanks to the two separate adjustable heads.

As the plants grow, pinch or cut the terminal bud – at the top of the plant – to support the growth of side shoots.

This will help your plant grow outward, not just upward, and will result in a bounty of deliciously fragrant leaves.

After two weeks, you can transplant the basil into larger pots and gift them to your friends.

Or, at least one week after your last frost date, start hardening the plants off by putting them outside for an increasing amount of time each day.

By the end of a full week, the plants should be ready for their home in your outdoor garden.

But what if you can’t find grocery store basil anywhere?

For those of us who live in USDA Hardiness Zones 1-5, it can be considerably harder to find live plants in our local stores – especially if it’s not summertime.

The good news is that if you can find a cutting, you can grow a new plant.

The dangers of seed patents explained

The word 'patent' may bring to mind a new invention such as vacuum cleaner or engineering tool. But curiously you can also patent one of nature's most fundamental life forms - a seed.

Patents are used by plant breeders and agribusinesses to give them ownership of seeds they have created. These owners can then control the sale and use of their patented seeds. However, there has long been recognition that ownership of seed could threaten food security and biodiversity - as it restricts access to the patented seed and plant life.

So there are laws to protect us from a spread of seed ownership. But are these laws changing? And what are the consequences?

Below is a guide to the complicated world of seed patenting.

Why patent seeds?

Plants and animals have evolved over millions of years by natural selection and adaptation.

Man has learnt how to select from this broad biodiversity in order to breed plants with specific characteristics. Perhaps creating the biggest fruit, or the brightest flower. In farming crops, this selective breeding can create a plant best suited to the conditions in which it grows – drought or blight tolerant, for example.

Laws exist which control this process of selection and breeding.

The Nagoya protocol, for instance, ensures a fair and equitable sharing of the benefits which arise from the use of genetic resources such as plants. This means that if, for example, you use a wild Chilean strawberry plant to cross breed from, and you make money on the new breed, Chile is owed recompense for providing the original strawberry plant.

These laws also protect the intellectual property of the plant breeder and their new varieties.

What about patents?

Plant breeders can apply for a patent on a newly-created plant. As with any new invention, these patents provide ownership of a new ‘product’, to prevent replication, and to provide income from subsequent sales.

If a breeder has created a whole new plant species through genetic engineering, he can prevent others from the reproduction, use, sale and distribution of this newly invented plant. For example, Monsanto has produced plants which are ‘Roundup Ready’, by inserting a single gene which gives the plant resistance to the herbicidal spray Roundup. This single gene gives the plant a unique characteristic which has been defined by altering or inserting a single DNA sequence.

Agribusinesses, such as Monsanto and Syngenta, frequently apply for patents on the seeds and plants they have genetically engineered. It gives them monopoly rights subsequently over all seeds, plants and fruits with the same trait.

What if the ‘new’ plant has been bred – not by genetic engineering - but by conventional breeding processes?

European law originally stated that patents would not to be granted if a breeder used conventional processes. The argument being that the outcome was the result of a natural process, and that future breeders would also be able to work with the original plants.

So what has changed?

In March 2015, the EU Patent Board granted patents for two plants which had been bred conventionally, not genetically engineered. These were a tomato (which had low water content) and a broccoli (which had enhanced glucosinolates). This has unfortunately set a precedent for patents to be granted on conventionally produced plants, and their seeds.

Why is this not a good thing?

If a patent is granted on a plant, the breeder not only ‘owns’ the plant, but gets subsequent rights on all its genetic traits. This is logical if applied to genetically engineered plants, as those plants are defined by the specific trait present only in that species.

If, however, patents are granted on the results of an open cross-breeding process, there will be many traits within the new plant which exist in other plants of the same species. Therefore a single patent, say on a simple cross-bred tomato plant, can de facto cover hundreds of tomato varieties. It will also cover its seeds, and potentially the seeds of other varieties. This could ultimately lead to one patent owner having legal rights to all tomato plants and seeds, for instance.

For the organic grower, indeed for all independent growers, this raises the risk of a legal challenge when saving and swapping seeds.

Other worrying consequences are reduced biodiversity, control of growers’ access, and – curiously - will hinder innovation (see Consequences of patenting plants and seeds below).

To summarise:

  • Plants and seeds can be patented if they are defined by a single DNA sequence that has been individually created. For example, a genetically engineered plant which has a gene inserted to make it herbicide resistant.
  • Patented seeds and plants are the property of the patent owner – who can restrict their use and distribution. This puts our food supply in the hands of breeders, such as large agribusinesses, not the growers.
  • European patent laws are changing. It used to be that the results of conventional breeding processes were not patentable, but as of a ruling in 2015, they now are. This negates the whole intention behind the patenting process (known as Article 53b) and opens a wider pathway for patent granting.

Who grants plant patents? The European Patent Office (EPO). It is funded by the fees from patent applicants – such as Syngenta and Monsanto – and it is not answerable to the EU justice system. Instead we have a closed shop system, where the EPO benefits from applications. Indeed it is in its own vested interest to invite and grant patents.

Independent organisations such as No Patents on Seeds and Garden Organic are fighting to maintain the ruling that natural breeding processes cannot be patented, and to make the EPO made more accountable. To date, the European Commission is sympathetic.

“We are deeply concerned,” says James Campbell, Garden Organic Chief Executive.

“We can foresee a time when not just plants, but the very DNA of a seed could be patented – leading to control of our heritage seeds by the large agribusinesses. This will affect farmers, small plant breeders and ultimately the food supply chain. We will continue to fight for a fair and equitable patenting process.”

The consequences of patenting crop plants and seeds

If the EPO continue to grant patents on seeds and plants bred by conventional processes, there are four important consequences:

Increased prices for farmers and consumers Through the monopolisation of the seed market, small breeders will be edged out and the large agribusinesses will be free to determine the prices for their seeds, at the costs for farmers, and ultimately, consumers. The three biggest companies Monsanto, Dupont and Syngenta already control around 50 percent of the global proprietary seed market. They are the ones who will make the decisions on which plants will be bred, grown and harvested - and how much they will cost.
Less innovation Contrary to the intended purpose, patents on seeds substantially hinder innovation. These patents can be used to block access to the biological diversity needed by other breeders and farmers to breed and grow. If permission is granted, a licence fee must be paid to the patent holder. And no further breeding can take place without permission of the patent holder.
Less biodiversity & variety As the patent owners spread their control, there will be less access to diverse agricultural varieties for breeders and farmers. Growers will have restricted choices and gradually the diversity of species and genome types will decrease.
Endangered food security Given reduced diversity, crops are less capable of adapting to diseases or changing environmental conditions (such as climate change). High agricultural biodiversity is essential for our food security.

Further information on patenting seeds and the campaign against it can be found at No Patents on Seeds


Be aware that most commercially available plants are patented and may not be propagated this way. If you use open-pollinated heirloom varieties you can propagate all you want, but of course the best way there is to save the seeds.

I thought as long as you don't sell your propagated plants, i.e. for personal use only - then you can propagate to your hearts content, or is this not true - anyone know .

Not true. Most nations have laws against "seed saving" of patented plants. Not sure about propagation from cuttings. Like many things, if it is for your home garden, you are unlikely to have problems. If it is for your home farm, you well may.

Something else to think about: A major problem with patented and GM plants is that to various degrees, they are genetic monocultures. This makes them highly vulnerable to disease. Propagating such plants even for yourself makes you as vulnerable as they are.

Something else: Many patented plants, esp Monsanto products, are designed to be very good with certain proprietary additions, rhyzobium for soy, glyphosphate for "roundup-ready" plants, heavy fertilisation for many "green revolution" plants. They often are less hardy and less productive than traditional plants (less robust) without these things.

Use traditional and heritage varieties. Work for plant diversity.

Please name me a patented gmo tomato plant. Last I checked they don't exist.

Patented? Realistically, how could anyone patent a life-form? Don't drink the Kool-aid. It's the basis of the entire plant/nursery business. It's the basis of agriculture.

More like it's the basis of the agricultural industry, the plant/nursery business as you wrote. Innovation happens without economy, and I think that the patenting of life-forms sets a dangerous precedent (commercializing life). I don't doubt that such a law exists, it just seems morally wrong to me. I was in an argumentative mood last night!

Laws vary from place to place. I have never heard of that law here, but it may be a law somewhere.

The Trade Related Intellectual Property (TRIPs) agreements within the World Trade Organisation (WTO) have become de facto law, as most nations have signed onto the WTO. The WTO replaced theh General Agreement on Trade and Tarriffs (GATT) as the global trade regulation body. This organisation is, indeed, evil, with little or no representation of people, and with corporate interests seen as overriding the "trade barriers" of nations.

Some of the aspects include the right to own not only seeds and genetic material, including that of human genes, plants, and patenting of natural substances used in traditional medicine. It also includes the ownership of shape, colour, smell and other sensory cues under design law. Pink Batts own pink, for building insulation. Coke owns the shape of it's bottle.

Yes, seeds are owned. Any nation in violation of WTO risks sanctions, so most nations have embodied WTO regulation into law.

"An unjust law is itself a species of violence. Arrest for its breach is more so." - Gandhi

A wise person -- I forget who -- said that as there are unjust men, there are unjust laws. Some of us obey such laws because, being deeply immersed in unjust societies, we have lost the ability to distinguish right from wrong, just from unjust. For those of us I have no remedies, because even if I did, they would not accept them.

Others amongst us obey such laws purely out of fear. Because behind every unjust law stands a covert or overt threat of extreme violence. There is a case to be made for that kind of compliance. Who could fault a person who is by design a survival machine, that doesn't want to go to prison, to be tortured, impoverished, hanged, drawn and quartered?

Still, sometimes the fear that we submit to is an internal beast. Big brother isn't all that big. He can't watch our every move, our every action, our every small act of disobedience. Sometimes we find ourselves somewhere, in the privacy of our homes, in remote corners of our lives, where we truly are free, where no corporation, no government, no policeman, no lawyer, no judge, no jury, no executioner is watching us. In such places, at such times, if we choose to uphold unjust laws, our obedience turns from an act of understandable, justifiable cowardice to one of voluntary collaboration. So, if you find yourself in such a position, realize that disobedience of unjust laws is your moral duty. And that someday our species will look back upon the patenting of life with the same contempt we look back upon the ownership of human beings.

Watch the video: Plant propagation for beginners 5 indoor plants