The patentability of plants is the subject of huge debate, and during my Master I did a consultancy project for a breeding company to see what the current case law is on this, and spoke to patent lawyers. For now patenting living things in only done the US (unsurprisingly). The entire subject is still a huge gray area legally, because the debate is on A) whether living things ethically should be patentable, and B) do new varieties even meet the criteria for patenting in the first place.
Patent and trademark are two very different things. A trademark only protects the name, not the cultivar/variety, so both sexual and asexual (so cuttings) reproduction is allowed. Patents on the other hand are a whole different matter. If you hydrangea was patented, then it is illegal to take cuttings or use pollen/seed without the patent holders permission (and then pay royalties for each ‘copy’ made. Patents are very contested because it is incompatible with Plant Breeders Rights,use in many countries. Essentially the registered varieties are protected (people can’t sell them as their own), yet other breeders can legally use them in their breeding programs to create another variety, as long as it is significantly different from the PBR protected plant.
From talking to lawyers and other breeding companies, because of the gray zones it is tolerated for individuals to reproduce the plant for their own personal use (but still illegal). Their concerns lay mainly with commercial illegal use. If the variety was patented more than 20 years ago though, then it has lost all protection.
This affects ALL plants, so orchids too. So in which case, if you follow the law to the letter it is illegal to divide a patented plant!
Personally I find all this ridiculous. Taking a few cuttings is not the end of the world, and it is difficult to trace.
Originally Posted by Magnus A
But how can he patent a plant?
Was it genetic modified?
How can he prove that it is a new discovery that is not part of a natural variation within the species?
And how do he prove in court that it is the same plant and not another?
This is precisely what the controversy is about, and where the gray zones are! Patented things must be new, and require an inventive step, ie it is not obvious what you have to do to get to the final product. The inventive step part is not really an issue. Whether the plant was made through classical breeding or with the aid of molecular markers, it was invented. The issue lies with the newness. Your variety may be unique and innovative (purple cauliflower for instance) but all the genetic material involved already existed, it just got mixed up differently! The breeder did not create the color genes, he selected for them. Unfortunately no one is stepping up to clearly lay out the ground rules about plant patents. Case law is what people are going by.
GMOs are a totally different case, since corn with BT genes in its genome does not naturally exist. Yes all those genes already existed, but the newness is that they were combined for the first time.