Finding Variety Patent Status

General Fruit Growing
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What is the easiest, fastest, and most accurate way to determine if a variety is patented or not? Generally I’m finding this to be a difficult process.

Why can’t we, in 2024, just pull up all that patents related to black currants, and see what cultivars are patented and go from there?

How would a nursery reliably find this information and pay proper royalties? If the information isn’t available easily online, is there some place you can call? Send a letter? It must be possible right?

I see some older discussions on the topic, but wonder if things have changed. Currently I’m most interested in info on currant, and elder varieties, but certainly many others as well.

I honestly thought I had an excellent idea and tried ChatGPT, but it gave me some strange answers that I knew were not correct, so I’m going to avoid that.

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Thank you!

I have tried to search with Google Patents…I found that the search results were hard to even remotely relate to what I was looking for. Maybe I’m just getting impatient.

Do you or does anyone have experience looking for plant patents with Google Patents?

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One can assume that if you are obtaining a plant wholesale, the person you are getting it wholesale from would know if its patented or not, since you need permission to propagate patented plants via anything besides seed from the plant (which means its a seedling of X, not X, so you aren’t supposed to use the variety name anyways). So asking your source is always a good place to start.
You can also call or email your local USDA and state officials. If they don’t know, they can find out for you. If you have a local landgrant university, they can also probably get you the information.

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The USPTO has some decent search tools now. I used to check on the status of plant patents by searching the name of the plant followed by “pp” in quotes. Or just the name with patent in quotes. That would get the number which I could then enter into the USPTO search tool. Plant patents all have pp before the number, so you must use the pp prefix to find the patent. Use the basic search tool if you know the pp number. Note that for plant patents which are less than 10,000 you have to add a zero to the number to make the number 5 digits.

For example, if I wanted to search for Paul Friday’s Flamin’ Fury PF 23, using the basic search tool, which has a PP number 8164, I would type in PP08164 in the basic search tool.

Plant patents expire 20 years after the date the application is filed (not the date the patent is granted).

The USPTO now has some better tools which may help you.

If you know the inventor of the plant you are looking for, you can find it that way. Below is the link for the basic tool using the patent number, or basic search using inventor name.

https://ppubs.uspto.gov/pubwebapp/static/pages/ppubsbasic.html

For example, if I want to look up all the peaches patented in the Stellar series, I happen to know the inventors are the Bjorge’s (breeding program started by Annette’s father Jim Friday). So I select inventor in both left hand boxes, and type in Bjorge and Annette in the boxes on the right. It looks like this:

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and gives me a result which looks like this:

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This is helpful because they use FA (FA stands for their orchard name - Fruit Acres) as a prefix for their patented selections, not the trade name.

For example, if I wanted to know the patent info for their newest selection called “Sweet Star” peach, I wouldn’t be able to find the patent because it’s not listed as Sweet Star. However using the inventor search, I see their latest selection is FA 1566. Plugging that in an internet search yields the name “Sweet Star”.

Admittedly it’s a bit clumsy to go through all that, but at least its searchable that way.

Something much easier would be searching patents by Chris Floyd Zaiger. In that case some of his patents are listed under Chris Zaiger and some under Floyd Zaiger, so you have to look under both names to see all his patents. But he generally listed the actual Trademark name as the patent name, so you don’t have to track down the trade name, as in the case of Fruit Acres selections.

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Because many plants get patented under a different name than what they are marketed under, I always start by Googling the marketing name along with the word “patent.” If no results come it, it usually indicates it’s not patented, but if it is patented, this search typically results in me being able to find websites that list the patent name along with the marketing name for the plant. Then I update my Google search using only the patent name for the plant along with the term “patent”. Usually (but not always) this brings up a search result on Justia or the Google Patents website (sometimes both). You can then look at the date the patent was applied for and add 20 years to determine if it’s still under patent or not. I prefer Google Patents over the Justia website because they actually list the projected patent end date.

I find it easier to search Google Patents via normal Google, rather than directly on the Google Patents website. It just ends up working better that way.

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I forgot to note that plant developers can release a plant after applying for the patent, even if the patent has not yet been approved. In these cases you won’t find a patent listing yet, but the plant will be marketed along with the acronym “PPAF” which means “Plant Patent Applied For.” Because the patent office pretty much approves every plant patent request without much vetting, you can be sure that if it says “PPAF” it will certainly end up under patent protection if it hasn’t already at the time you are researching it.

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That should be the case, and in general you’re right. Unfortunately I’ve bought plants before which were labeled as patent protected by the grower despite not being under patent. The most egregious case I saw was for a plant that was released to the public around 100 years ago. Considering that plant patents only last 20 years, there’s simply no excuse for listing something so old as being under patent protection. Technically, it’s illegal for nurseries to falsely claim patent protection, but unless someone takes them to court (is it really worth the hassle?) they just get away with it.

In another case (different nursery) they tried charging me a patent royalty fee for a plant who’s patent had expired. Fortunately that nursery was ethical enough to update their listing and remove that fee after I contacted them to let them know that patent had already expired years prior.

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It’s probably best not to assume anything. I know of more than one company who advertises fruit trees or other plant material for sale indicating that it’s under patent in their catalogue, when in fact it is not. Maybe they don’t think it’s their responsibility to update their catalogue to let folks know that they can freely taking cuttings. :person_shrugging:t4:

Here’s an example:

Gurney’s Gold Rush Apple is listed with a patent number.
Google Patent says it expired in 2013

Typically the seller lists the patent number if they believe it’s under a patent. I always do my own homework and check.

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This is just my take as well. Usually a plain old Google search does the job.

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I once bought some trees from a nursery which charged patent fees for a variety no longer under patent protection. I spoke with the owner about it. He knew the patent was expired but indicated his contract with the breeder of the variety didn’t have an expiration date. Because he had to keep paying patent fees to the breeder, under their agreement, he kept passing those costs on to his customers. I thought it was kinda strange, but it sort of made sense.

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Wow, thank you everyone for your great input and healthy debate. I’m looking forward to trying to use some of this new information to sort out my patent questions.

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I don’t see any issue with this as long as the owner doesn’t misrepresent the fees that you are paying. The owner is absolutely not paying a patent fee because there is no legally binding patent on the plant material. The owner is just paying the same amount as he was when the material was under patent per the contract. Words matter. The law matters.

Why does this matter? Because you are now free to reproduce your plants legally, even if the owner of the nursery doesn’t want to go through the trouble to do so.

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I interpretted Olpea’s post to mean that the nursery was propagating the trees themselves, but still paying fees to the breeder because the nursery had a business contractual agreement to pay fees. At that point the breeder is just collecting money, not providing anything additional.

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I’ve experienced nurseries that charge customers “patent” fees on material that is no longer under patent as well. One of the larger nurseries that specializes in selling grapes on the east coast does this. I consider it sorta shady, since they don’t advertise it as such, you just see the charge show up on your bill. If you ask about it it’s done for the same reason, contracts with the original patent holder. A lot of breeding programs of plant of material that is covered under a current patent offer licensing for their stuff to various nurseries, and one of their “gotcha” things is they may make the nursery also pay a fee for propagating some of their older stuff that’s no longer under patent just like they do for stuff that’s currently under a valid patent if the nursery wants access to their new stuff. That’s passed on to the consumer. Like I said, I consider that kinda shady & a end run around the whole idea of a patent expiration but it is what it is. Certainly nothing stops an individual from propagating material with an expired patent without a fee, even if a nursery might due to some agreements they may have signed.

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I mostly agree with you, but it’s only shady, in my opinion, if the nursery claims that the customer is paying a “patent” fee when the material is not under a patent. I have no issue with the breeder saying “Look man, if you want my patent protected plants, you will have to pay a fee for the next thousand years.” If the nursery agrees, even though they know that the patent will expire in 20 years or less, then it is what it is. :person_shrugging:t4:

I don’t even have an issue with the nursery passing the extra fees on to the customer. The only thing I have a problem with, and I think it would be shady, is if the nursery tries to claim that you are paying a “patent” fee. Once the patent has expired, no one is paying a patent fee, the nursery in particular is paying a contractual fee.

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Well, in the case of the nursery I have in mind, a few years ago, the surcharges would show up as a patent fee on the invoices even if the patent was expired. Now it says its a royalty fee instead, which is kinda the same thing, but might give them more legal wiggle room. I’m not sure if they got in trouble for their wording at some point or not. I do know their catalogue/website routinely claims stuff is under patent & cannot be propagated without a license on things that I know the patents expired on years ago. Fairly common to see that in industry. Idk, I guess the biggest reason I don’t like stuff like that is because I feel like it would be more honest to include it in the price upfront, rather than offer a deceptively low price & then hit you with surcharges & add on fees on top of everything. Probably the same reason I don’t like eating out anywhere a tip is expected or flying on airlines that charge extra fees for your first checked bag. Just seems sneaky. Your milage may vary.

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Same! I can’t wait for tipping to go the way of the dinosaur!

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The practices you describe implicate patent law, trademark law, and antitrust law.

As the law currently stands, it is clearly illegal to charge patent royalties after a patent expires. This is an old rule known as “patent misuse,” which the Supreme Court reaffirmed in 2005. But it should be noted that three members of the current Court dissented.

The practice of requiring purchases of unpatented items as a condition to licensing a patent is known as “tying” and is governed by antitrust principles. This practice is illegal if the seller has “market power” and is a fact specific inquiry. If this issue is important to someone on the forum, it would require analysis of the specific facts.

As to renaming the added charges as a “royalty” rather than a “patent fee” or “patent royalty,” I suspect this charge may be based on trademarks. For example, if a nursery wants to sell a tree under a specific trademark (e.g., Pink Lady v. Cripps Pink) and someone has acquired a trademark on “Pink Lady,” then a license may be required and a royalty may be imposed. Note also that there is no limit on the term of a trademark.

At first glance, it seems odd that the nurseries add royalty fees to their selling price and require customers to pay them. In reality, the royalties are owed by the nurseries, not by the customers. For example, when a nursery sells a patented tree, it owes a royalty to the patent owner. The customer, however, does not owe a royalty— because once a patented product is sold and enters the chain of commerce (assuming the seller pays a royalty), no further royalty is required from a customer. But I assume the nurseries do this because they want to charge a single price for their trees rather than charge different prices depending upon whether royalties are owed on the tree—so they add the royalty fee to the otherwise set price for those trees that require a royalty. It’s just a convenient way to charge a higher price for those trees.

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That absolutely boils it down to a nutshell. At that point, it really boils down to semantics. Royalty fee, patent fee, contractual fee, etc.

In my case it did show up as a patent fee on the bill. But if the bill showed a contractual fee, it wouldn’t have made a material difference. It was the same cost to me.

Of course I could have refused the fee at that point. But that begs the question, do I want to kick against the goads at that point, just so I can prevent the nursery from “getting one over on me?” Most folks would take the trees along with the extra cost, which is what I did.

For one thing, waiting another year for trees from some other nursery (or grafting them myself) cost a lot more than the misappropriated patent fees. Lost time is more valuable than the cost of wholesale trees because lost time is lost revenue.

It’s true the fees weren’t labeled correctly, but I didn’t want to reject the trees based on semantics.

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