I’m brand new to this, so bear with me. I apologize if this has been asked before (I found a closely related thread on patented varities), but that one doesn’t quite answer my question.
I get that I can’t propagate patented trees to sell or give away (or keep for that matter). I also understand that the same goes for patented rootstock. What I don’t quite understand is what my legal obligations are once I’ve grafted non-patented scion wood to patented rootstock. Obviously, I can keep/grow these if I purchase the rootstock, but can I give them away or sell them? If I can sell them, while the non-patented scion wood would be royalty free, do I have to pay a royalty on the rootstock even though I paid to purchase them in the first place?
Sorry again if this is a boneheaded thread. I just can’t find this particular question answered explicitly.
You cannot asexually propagate a patented variety. This means you cannot take a patented rootstock and make two (or more) from it. Obviously, you can resell or gift what you purchased (e.g., a patented rootstock), because you already paid the patent license fee/royalty when you bought it, unless you signed a contract that says otherwise.
To me it’s the same as copying a cd for a friend, sharing your netflix password, or any other theft. If you can do those things, then your morals shouldn’t prevent you from generating your own trees from patented trees
@Exmil
I disagree on that. When I buy root stock and graft my own not patented scion on it it is the same as I bought CD and placed a glittered sticker on it. Now I decided to sell it or give as gift. Can I do it to CD? Obviously, yes, I didn’t make an illegal copy, it is the same CD I already purchased legally. Same goes to the tree I grafted on patented root stock. I sell like that CD. And moral discussion is out of place there.
@neko, sometimes when I buy a plant from a nursery I can see there is royalty fee added. I think, it is exactly your situation. They buy patented material to produce a plant they selling to you and you pay them back for it - the royalty fee. So if you didn’t propagate your root stock - you good to go.
You can sell the Tree’s you make from those patented rootstock with non patented scions freely. If you bought those rootstocks and did not propagate them yourself. The seller who sold those rootstock already payed the royalty. So you would not have to pay that again.
If you where to make a stoolbed or root graft or otherwise propagate/multiply the protected rootstock variety. Than you can get into trouble.
It’s fine since your not multiplying/propagating a patented variety in this scenario. Your just reselling a plant of a protected variety that already has it’s royalty paid.
If you where to graft a patented scion onto a non patented rootstock it’s another case… Since than you are multiplying or propagating a protected variety.
Disclaimer. I am not a legal professional and in another country. As far as i know what i typed above is roughly how it works in most countries. But before you start commercially selling or making a business out of it. Do your own due diligence.
You may propagate patented varieties by cloning for your personal, non-commercial use – for example to establish a second tree. Anything that could be appraised to have commercial value is prohibited.
You may give away (including ship) non-patented plant material to anyone provided it does not violate local, state, or federal pest and plant exclusion laws. Within the U.S. this usually boils down to scionwood, seeds, and sometimes 100% bareroot plants that are (a) visibly free of disease and pests, and (b) not on a list of prohibited plants. For example, you can’t ship callery pear to OH and you can’t ship persimmon roots to CA. Many countries and the EU require a phytosanitary certificate to accompany any incoming plant material.
You may not sell plant material for propagation in the U.S. without a nursery stock license, period. Further, you may not ship it out of your local jurisdiction without state and federal compliance agreements – which vary by your location, type of plant, and destination. For example, AZ has the strictest import laws in the nation for plants coming from locations prone to hardwood scale. In particular, they require your site to be inspected monthly by your state agricultural department.
@Richard You stated “You may propagate patented varieties by cloning for your personal, non-commercial use – for example to establish a second tree. Anything that could be appraised to have commercial value is prohibited.”
Do you have a reference for this? I was under the impression that I could not propagate a under patent rootstock for personal use.
Great answer! So essentially what I’m gathering is that unless both the rootstock and scion are no longer patented, it’s illegal to sell a grafted tree? (Assuming you don’t have an agreement of some sort with the patent holder.)
a simple example would be.
You buy 100 rootstocks of G41 from a seller. That seller has payed the royalty on the G41. And thus those G41 rootstocks/tree’s are legal to resell. You can resell those un-grafted or grafted with a un-patented variety freely.
So, bought G41 grafted with cox orange pippin (un-patented) you can sell. (patented rootstock with paid royalty (seller paid it) grafted with unpatented scion can be sold
If you where to make a stoolbed and multiply the bought G41, that’s not allowed. Since than your multiplying patented plants. (unless of course you pay a licensing fee/roaylty)
If however you grow/multiply your own M9 rootstock and graft cox orange pipping on it (or another non protected variety) that’s also allowed. (un-patented rootstock with un-patented scion) is also allowed
However if you where to graft a cosmic crisp or patented scion onto anything, that’s not allowed, unless you have an agreement and pay a royalty.
Well geez. I’m getting two complete contradictory answers in this thread - one from @Richard and one from @Oscar. I don’t feel quite so bad for posting this “boneheaded” question. Seems this issue isn’t exactly clear.
Is there a listing of rootstocks no longer under patent? I found a fairly comprehensive list of patented plants of just about every fruit bearing species, but only a couple of the rootstock varieties are listed both as patented and expired patent entries.
It is a complex issue. that’s why i tried to give some examples. And i want to emphasize I’m on another continent and am no expert/lawyer. So i might be wrong.
I think my and richard’s post don’t contradict though.
Richard has a good point, that next to plant variety protection or patent laws. There might also be other things you need to take into account when selling tree’s (diseases etc)
If your planning on starting a tree nursery or webshop it might be wise to contact an expert/extension/lawyer and do your due diligence.
In the EU the plant variety protection lasts for a maximum of 30 years. So most older rootstocks are no longer protected (if they ever where)
I think it’s similar in the US.
Right on. I already have a small native plant nursery and have my dealer and phyto sanitary cert. Apples are new to me though! No native is patented as far as I can tell.
