Selling plants of uncertain ancestry.

July 9, 2008 6:34 PM

Plant breeders' rights question - propagation and sale or plants, when in ignorance of the fact that the plant you're propagating and selling is a registered variety.

Say you buy a house, and in the garden is a lovely pink geranium. You decide to take some cuttings from it and grow them. After a while you've got a few dozen new little geraniums growing, some of which you plant in your garden, but you've really got no space to plant them all. So, you put up a sign on your gate - "Geraniums for sale $5".

Now, imagine if the geranium you're selling is actually a registered / patented breed of plant. The sort of thing that, if you bought it in a store, would have a little tag attached saying something like "Propagation and commercial sale of this variety is illegal under the Plant Breeders Rights Act..."

Would you get in trouble, from a practical (detection) point of view, or a legal point of view, for doing this? I'm in Australia for the record, but I'm assuming things would work in a similar way elsewhere. Essentially, are you doing something illegal by selling plants grown from cuttings or seeds that you had no idea, or no simple way of knowing, were registered plant breeds?

posted by Jimbob to home & garden (8 comments total)

I don't know for sure about your situation, but I can tell you that farmers have gotten in trouble for selling crops that were pollinated (or something like that) partly from genetically created crops. And it didn't matter one bit that the pollination happened due to wind, running water, or any other form of natural pollination.

I'd check with an expert in the field or a lawyer.
posted by theichibun at 9:20 PM on July 9, 2008

Yes, I've taken courses where we've covered this real briefly, and I'm almost positive the answer is yes. That would be illegal. If they were in your yard they weren't likely wild, and I think it might take some crazy mutation you start from seed to call it your own.
posted by pilibeen at 10:19 PM on July 9, 2008

ok ... australian lawyer here ... IAAL, IANYL, TINLA etc.

Yes ... Illegal ... It is unlikely that you would get caught selling a couple of geraniums from your garage, and any damages award would likely be insignificant ... but commercial exploitation (eg. wheat by a producer ... geraniums by a garden store or provider) would likely get caught and be seriously punished.

More info from Austlii link
posted by jannw at 2:50 AM on July 10, 2008

Thanks. I assume the take-home message from this is really that you shouldn't be propagating plants growing in gardens and selling them, unless you have some serious expertise in identification of varieties.

What about giving them away? We were out last weekend, and my wife stopped to take some photos of a particularly spectacular purple flower in someone's front yard. A woman came up and spoke to my wife - "Hey, do you want some of that to take home and grow? You just shove it in the soil, it'll grow fine." - she rips off a few stems - "Don't worry, the owner is a friend of mine, she wouldn't mind!"

Could we have been taking part in a heinous intellectual property crime?
posted by Jimbob at 4:20 AM on July 10, 2008

@jimbob.

Take home message is ... don't commercially exploit something you don't know you are allowed to.

heinous IP crime??? hahahaha ... it would be up there with photocopying a book in the library.
posted by jannw at 4:33 AM on July 10, 2008

This is so sad - stupid laws interfering with friendly social interaction and the attempt to create more beauty in the world. Though I could see a case against full-scale commercial production. (I sometimes wish I could take our legal system and rewrite the whole damn thing).

I think theichibun was referencing a case where Monsanto's Frankencrops somehow contaminated a farmer's corn fields (through normal natural processes like wind) and they took him to court - and won. I believe the "damages" also included Monsanto being awarded a large part of the farmer's land, because reading a follow up on the farmer somewhere lately mentioned that he was now nearly destitute and out of business.

Question: how would anyone even know - without a DNA test - whether a plant was "pedigree" or not?
posted by GardenGal at 10:31 AM on July 10, 2008

Well GardenGal, experts may be able to recognize different varieties. I'm sure there are people who can look at a rose and say "Oh, that's a Mr. Lincoln". DNA would be the foolproof test, though.

Take home message is ... don't commercially exploit something you don't know you are allowed to.

The problem is, many many people would not be aware plant breeders rights even exist. If you see someone selling stacks of CDs at a local market, your automatic assumption is that they're pirated. If you see someone selling daisies and strawberries at a local market, the idea that the seller might be a "pirate" would not cross most people's minds. We expect music, movies, books to be protected by copyright, while as we naturally expect something like a plant to be 'public domain'. I guess the root of my question was "is ignorance a defense", and it looks like it's not.

So I'll stick to taking cuttings from my garden for "personal use", as "backups" only.
posted by Jimbob at 12:49 PM on July 10, 2008

Late on this one, but worth nothing: In the U.S., plant patents last for only 20 years (25 for trees and vines). Depending on how old your house is and how long that geranium has been there, you very well might be in the free and clear.
posted by purpleclover at 6:58 PM on July 13, 2008