FlyTrapCare Forums

After chatting with Matt the other day about getting hold of FTS cultivars in UK and explaining that a local nursery has some clones of FTS cultivars it got me wondering is it possible to protect cultivars from being produced elsewhere and sold by others. Although I'm glad in a way that others have clones it seems a bit unfair that after all the hard work to produce a nice cultivar anyone can clone and sell it and even use the Fts title for a sales advantage. A disadvantage for us collectors if it were copyrighted would be people selling the same clone and changing the name ruining the authenticity of any purchased cultivars but I find it strange there is nothing (that I know of) protecting people's hard work.

Aparently, YES! it's called "plant patents" acording to:https://plantlaw.com/2018/10/30/copyrig ... t-variety/
"PLANT PATENTS ARE SURPRISINGLY SIMILAR TO COPYRIGHTS

You’re a plant breeder. You have a great cultivar that you want to propagate and sell. You would really like to put it out there so that all your hard work could pay off and so that everyone could enjoy how great your cultivar is. Of course, you don’t want to sell one plant and then have the buyer of that one plant become your competition by using it to make and sell numerous clones. You want to be the only one who can sell clones, or you want people who sell clones to have to do so with a license and pay you royalties. Seems fair, right?
.......... (the dots are added in by uxleumas)

Something that most people (even most patent attorneys) do not know is that plant patents are very much like copyrights for plant cultivars. Plant patents only cover exact genetic copies (asexual clones) of the patented cultivar. They do not protect sexual progeny (plants grown from seeds) or plants that are merely similar to the patented cultivar. So, in that way, a plant patent is essentially a copyright on a plant cultivar.

..........

In contrast, a “plant patent” protects a unique, original genetic combination that started as a single plant. The plant patent also covers all individual plants with the same genetics — asexual copies of that original plant.

So, to review:

A utility patent relates to an inventive idea and can cover anything with certain similarities to that idea, depending upon how it is claimed.
A copyright protects against actual copying of an original work.
A plant patent protects against actual copying of an original genetic combination.
Hmmmm… maybe you CAN (almost) copyright a plant. Get a plant patent.

FYI, plant patents are much less complicated, much less expensive, and issue much more quickly than typical utility patents. So, if you’re a plant breeder, do not be intimidated by the term “patent.” Think of it as something like a copyright.*


*Because I’m a lawyer, I have to point out that a plant patent lasts for 20 years from the filing date, while the term of a copyright is much longer; and that copyrights exist automatically upon creation of an original work, while plant patents must be applied for and granted before the rights exist. So there are some important differences. ........."
so, you indead can "copyright" your own plant, but you have to fill out a few papers and stuff. good luck!

Wow thanks for the reply it's very interesting as Venus fly trap cultivars can only be reproduced by cloning therefore are genetically identical to the original cultivar/mother plant then this patent could be used. I wonder if anyone has actually done it for vft and would the patent protect it overseas.

Yes plant patents are a thing. I've seen plants at nurseries (non-CP) which specifically note on the tag that you are not allowed to propagate it. I don't know how they enforce these patents though, short of someone propagating them for a nursery. I think it would be even more difficult to enforce internationally.

Plants can also have trademarked names which we've seen several times with CPs, where people are allowed to propagate the plant, but not use the trademark name for it. I haven't really figured out the purpose of doing this, but it's been done.

This is what I was thinking in the initial post that it would encourage people to change names and in turn ruin the reliability of buying the clone you want. Enforcing it like you said would surely be almost impossible and very expensive for the patent holder to prove.

I think the use of the name trademarking being prohibited is probably because it ads increased saleability for instance sticking Fts in front of your cultivars name would make it more recognisable almost like stealing a brand.