PLANT PATENTS, PLANT BREEDING RIGHTS, WHATEVER
by the Registrar 2003
The Bromeliad Cultivar Register published in 1998 showed reference to plant patents. Plant patents evolved to protect breeders from exploitation by others in an open market and act in a different way to what we call ‘Registration’. In no way can it be construed that reliance can be made on this plant patent reference NOR NON REFERENCE.
Plant names under plant patents will still be recorded in the Register when we know about them because the name will still apply in the future when the plant patent is obsolete. Secondly, it may help in reducing the use of duplicate names and the subsequent confusion in identification.
Plant patenting is a separate plant naming and identification system where there is NO direct contact with the ICRA and certain care should be taken if you are growing a plant which has a Plant Patent. Information received to date suggests you can safely grow on and take offsets from any named plant whether it has plant patents or not. The official wording seems to be you can grow patented plants for experimental purposes, privately and non-commercially. If you sell then you need to check with the Plant Patents authorities for the country (or area such as the European Union) in which you are going to sell. If you are going to sell in quantity we suggest you contact the hybridist by way of courtesy, in any case. Remember that asexual sports, like variegation, are also covered under the plant patent even though they would need a new name under the ICNCP rules. If it is your own hybrid then you have no worries even if one of the parents may be a patented plant. If you grow from self set seed from a patented plant you may also have to be wary depending on the country concerned.
Commercial growers of plants are well aware of these restrictions in selling plants, but how does it affect the back-yard grower and Plant Societies who organise plant sales? From what I can see, the onus is on the grower and not the Society unless the Society buys the plants for resale. Therefore, the grower is the one who should be checking for plant patents and you only need to check in the country where you are selling. Most have web sites where checking is easy although the one maintained in the USA is not user friendly. It is of interest that only a few bromeliads have current patents (or have applied for patents) on the various country’s websites I have checked. If in doubt you can always give away or swap any spare plants you may have. However, you have been warned of these dangers especially if you sell in bulk. Contact a Solicitor or Lawyer versed in Plant patents if you want advice.
Remember too that a plant label, that purports to be under plant patent for your Country and is not, would in all probability be in breach of the various Trade Practices Acts. Certainly in Australia a label giving a false impression about a plant patent is a punishable offence.
Registering of plants through an ICRA such as myself, is based on trust and keep those registrations rolling in. You can still use the information on the register as evidence to institute court action if someone were using your hybrid as their own. Plant Patents are based more on mistrust and you are advised to check before acting.