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| Last year in one of the (own root) rose orders I made I noticed that every pot from that nursery contained 2 or 3 rooted cuttings instead of just one. Knowing this would not be healthy, I seperated the cuttings and potted each one up seperately. One of these roses was still under patent protection. Since I only ordered and paid for one rose, was it technically legal for me to keep the other cuttings or should I have destroyed them (from strictly a legal standpoint), or was it okay to keep them since they were already seperate plants when sent by the nursery, just all in the same pot. Thanks! |
Follow-Up Postings:
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| I am not a lawyer, but it would seem reasonable that if it was proper for you to only receive one cutting grown plant per pot, the burden would lie with the supplying source to insure you only received one in that pot. They chose to pot multiple cuttings in each pot, probably to produce a fuller, bushier, more mature looking product faster. This may or may not matter to the patent holder, and it is the licensee who owes the royalty payments to the holder. They may balance the multiple plants royalty opportunity cost against collecting payment for sales earlier, faster than they may have, had they chosen to provide only one cutting per pot, but would have had to wait longer for one to mature into the appearance multiple ones did at shipping time. More than likely, they didn't even think about it. Their primary focus was to provide acceptable product ASAP to fill the existing demand, making as many sales as possible, as quickly as possible. No, I don't think you were under any obligation to keep them potted together, nor to destroy the duplicate rooted shoots. Many of the grocery store minis you buy are patented and all of them contain anywhere from three to five rooted cuttings per pot. You aren't expected to pay a per plant price, just a pot price, just as you were expected to pay to your own root provider. It would also depend upon how the patent licensing agreement is worded. Some require a royalty amount for each bud used. Some of those require payment whether the bud grew or failed. Others only if the bud resulted in a plant. It may be that for own root production with this supplier, their license only requires payment for the number of sold "plants". If a dozen rooted pieces in a pot is considered "one plant", then that's what you pay for, though it could be that only one rooted piece is considered "one plant". Again, though, in that case, the burden remains with the provider to insure they aren't giving away product per their agreement. Kim |
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| I don't see a problem--the patent makes it illegal to make more clones of a plant. You don't have any more plants after separating them than you did at the time of purchase. |
Here is a link that might be useful: US Patent office page on plant patents
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