Taking Cuttings From a Plant You Bought Could Land You in Legal Trouble – A Lawyer Explains

You’ve probably heard it said a hundred times that propagating from cuttings is the best way to get free plants! And yet, it’s not always true. Sometimes, propagating from cuttings – or even trying to – can land you in jail and saddle you with fines. So the key is: know before you go.

Since rooting plant cuttings doesn’t involve fertilization, it is called an asexual method of reproduction. And it can be free and fun as long as you stay on the right side of the law!

As a plant lover and an attorney, I am here to give you a synopsis of the questions you need to ask.

When is Rooting Plant Cuttings Legal?

If you can answer yes to these questions, rooting cuttings is absolutely the way to go. So walk through them every time you are thinking of practicing asexual plant propagation!

1. Does the parent plant belong to you?

“But I was only taking a cutting,” doesn’t get you off the hook if you are pinching a cutting from a parent plant in a retail store, a plant on private property, or a plant on public land including parks and botanical gardens. You can be arrested and charged with theft, trespass or property damage.

2. If not, do you have permission from the owner to take a cutting?

If the parent plant belongs to a neighbor or a small store, you might ask the owner whether you might take a cutting. Sometimes the answer will be yes, and that puts you on the safe side of the law. If the answer is no, do not under any circumstances take a snip.

3. Is the plant one that grows from cuttings?

Not every plant can be propagated by cuttings so look it up on your smart phone. Those that don’t include palm trees, conifers like pine and spruce trees, and almost all bulb plants, including tulips and daffodils. It’s not worth the time or effort to try to root a cutting from plants that won't grow from cuttings.

4. Are you sure that the plant is not covered by a patent?

If a plant is patented, patent law makes it illegal for anyone to reproduce that plant without the permission of or license from the person holding the patent. Wait! What’s a plant patent?

All About Plant Patents

Everybody has heard of patents. They are issued by the United States Patent and Trademark Office and give the person or company developing a novel product protected rights over that product. But did you know that new plants are developed every day - plants with new colors or new traits that make them different from any others? Plants can also be patented.

In order to get a patent, you have to do a lot of work. First, you have to confirm that your invention is new and conduct a thorough patent search to be sure it hasn’t already been patented. Then you have to fill in a lengthy application with sketches or photos and submit everything to the U.S. Patent and Trademark Office to be reviewed. I once did one for a friend who had developed folding airplane wings that would take up less room in storage. I can tell you it was a nightmare project!

When new plants are developed and patented, it is an equally tedious process. But anyone who receives a plant patent holds all rights to produce or reproduce the plant - for a term of 20 years. During that period, it is illegal for anyone (including you!) to root cuttings of that plant or otherwise asexually reproduce a patented plant.

Patented plants will have a tag advising a buyer that they are patented, together with a plant patent number (often in this format: “PP#12345). In many cases, there will be a specific reminder that under patent law, the plant cannot be reproduced asexually.

What This Means for You

This discussion might have you envisioning a dishonest person in a science lab pouring smoking liquids from one test tube to another in an attempt to reproduce a plant that has recently been patented. But no, a violation of this law is more likely to look like an ordinary person who buys a patented plant and clips off a stem cutting to propagate for a friend.

Yes, even if you spend money and purchase a patented plant, you do not have the right to reproduce it. The law strictly forbids asexually propagating the plant – whether you intend to gift it, sell it, or distribute it.

However, the reality is a little less threatening. As far as I know, the Patent Office does not send people door to door inspecting plants to see if plant patents were violated. And they would have a hard time if they did. Assuming the plant no longer bears the tag stating that it is protected by a patent, it would be difficult to determine whether any individual plant was a clone of a patented plant.

On the other hand, if you root cuttings from an expensive patented plant and sell them online as clones of the patented plant, you might find yourself on the business end of a lawsuit!

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