I have been wondering about the ethics of propagating non-patented roses. Say for example I have Paul Barden’s Oshun and want to root a few and maybe even sell them, what is my responsibility to Paul?
“Say for example I have Paul Barden’s Oshun and want to root a few and maybe even sell them, what is my responsibility to Paul?”
To be blunt, none. If you decide to make 2000 copies and sell them, it would be nice if you offered to pay fifty cents to a dollar per plant, but frankly, you’re under no obligation; without a patent, you are free to do as you wish.
Is it ethical to make 2000 copies of someone’s rose and sell them without volunteering to pay the creator something? That’s a very different question, one you can only answer for yourself. Five copies? Probably less of an issue. I think scale has something to do with it; if you are circumventing an opportunity for the breeder to make a meaningful chunk of $$, then the ethics issue become more important. At least thats the way I see it. Opinions will vary, of course. There are many people in the nursery industry that think that unless you file a patent, you aren’t due one cent for creating a unique cultivar. Legally, they are correct.
As for myself, I have adjusted my expectations considerably in the past decade based on what I know of the common practices of our nurseries. I don’t expect anyone to pay me anything. If they do, its gravy.
Hi Jeff, that is a great question.
Paul, as is characteristic of him, is being very gracious with his answer.
The only thing that a patent does is to provide legal force for what is the right thing to do. It is too bad that in order to force people to do the right thing, that you (the originator of an invention) have to pay $$$. Even with a patent however, there are nurseries that ignore the legal obligation, knowing that the inventor will not want to waste time or money to secure legal force to make them pay.
Some of the smaller nurseries though will even honor a “gentleman’s agreement” to pay a royalty on a non-protected variety. That is the right thing to do. The nurseries that do not even honor a patent should be named for all to see.
If a particular rose is good enough to propagate and to sell, then shouldn’t the originator be supported for the work that they do?
Even better than paying “fifty cents to a dollar per plant” propagated, would be to buy direct from the originator (or his/her licensees) of the plant.
Jim Sproul
I asked this because I went to Heirloom today and bought a bunch of roses. Some are patented, some are not. I was wondering whether a retail nursery pays for the work that breeders have done. Hope Jim Sprould got his 50 cents for the Heather Sproul I bought LOL.
I look at all of the roses that Ralph Moore bred and gave to TAMU. A lifetime of work could just be pirated by a nursery buying all the non-patented stock, propagating and selling it.
By the way, does anybody besides me think that $16.95 for a rooted cutting is a little expensive? Seems to be the going rate.
“By the way, does anybody besides me think that $16.95 for a rooted cutting is a little expensive? Seems to be the going rate.”
I used to think it was expensive.
Knowing what I know now, and having a degree in Nursery Mg’t, I say no, it’s not.
It’s simply the cost of doing business, and, staying in business. I can buy some plants for less than what they sold for 30 years ago.
Mass marketers have been keeping prices artificially low for decades. That’s the reason most independent retailers are now out of the business here in CA, and the reason why there is so little selection at home improvement garden departments.
I predict prices for roses will start to escalate and eventually get back into line with where they should be. We will have to adjust to the shock.
We shouldn’t undervalue the service we provide. Providing nursery employees a living wage is only fair.
All these rose nurseries are closing for a reason. For better or worse it’s time to adjust how we think about the cost of doing business.
While $16.95 seems high to me as the purchaser, it’s pretty low if I’m the producer.
What I have bought for that kind of price is usually in a 4 " square band, and actually a half grown potted rose. It blooms the same year in fall, and by next spring it is ready to set out like one in a 2 gal container from the nursery down the road. In KC, those go for round $25.00. Shipping tends to be prohibitive on those heavy containers and the lighter, younger plant does better than most bare root plants.
If you think through the labor involved in propagating, watering, preparing for shipment etc it soon adds up to an hour per plant. That $16.95’s a pretty low wage these days. Not to mention the elaborate and costly infrastructure needed to try to automate any of the processes, keep labeling straight and inventory full, heat a greenhouse, advertise and so forth. Much as I might like to, I sure can’t give up my day job.
I started this thread with a specific reason. I have some folks that have asked me to grow a few roses for them. I want to do what’s ethical and honest for the breeder while at the same time not scaring them off with a high price. I’m not real sure that the balance is there in this economy.
Robert is probably right: “We will have to adjust to the shock.” My fear is that this could be the death of the rose industry.
It’s not just the little guys. J&P has been refusing to pay Austin for years.
The link below is for the $800,000 judgement DA got recently for royalties from 2007 to 2010.
With J&P’s bankruptcy, DA is SOL now.
The link to the complaint in that lawsuit is here: http://www.courthousenews.com/2009/03/18/RosePatent.pdf
Jeff – Many of us just refuse to propagate anything patented or already on the market. Keith Zary, however, told me last year that his legal team had done a formal review of the situation, and come to the end result that a plant patent only prevents propagation from a legal perspective if the person sells the propagated material. That is, if it is for personal use or a gift, then there is no violation, apparently. Up to that conversation, I had always believed the opposite. I’m a lawyer, but I’ve never formally looked into that question.
Link: docs.justia.com/cases/federal/district-courts/oregon/ordce/1:2009cv03027/92232/19/
Hi!
Thank you for this high level of informations!
For the most of Ralph Moores Roses (Paul Bardens also, at least the ones I have seen fotos of) there is something special to say: many of them are so unique that its just not possible to sell them long term under a different name to make money.
Everyone with a bit experience would see whats going on.
OK that doesn’t solve the problem of really getting real money for really hard work.
But, as I want to say, there is now a different situation of being well informed in seconds - compared to ten years ago.
Today its NOT easy to propagate unique things under cover and “get rich” wich someone elses work, without being watched closely by the little crowd of specialists world wide, after a while.
Its an interesting time we are facing, the more our world is getting unpersonal (via internet), the more old rules of getting along with fellows are being transposed into that virtual world. And their moral weight there is as grave, stable and real as it is for me and my true neighbours … .
Perhaps that does also mean that the trend in breeding should tend even more to unique traits, than in the past, because that does not only mean attention, but also a certain protection.
Grx!
Arno
Consider this scenario: since you can’t expect any nursery to pay royalties on plants, patented or otherwise, you may as well require a license fee up front before you are willing to distribute plant material.* Currently I have only one licensed distributor: Rogue Valley Roses. If anyone wants to obtain my roses for the purpose of adding it to their nursery catalog, they approach either Janet, or myself directly. (There is evidence to suggest that most approach Janet at RVR first) Some nurseries approach RVR with an obvious intent to acquire the material without entering into any agreement to pay for the right to propagate the varieties which they will be profiting from. (One such entity that approached RVR about my work was a Canadian nursery that starts with an H and has a reputation for mislabeling their plants)
As for the relative health of the rose industry and the outlook for roses as a widely accepted garden shrub: clearly the current price of a rose plant does not accurately reflect the nurseryman’s investment in producing that plant. Many nurseries have failed in recent years, in part because the profit margin is too low to ensure survival. I know this for a fact. Its going to take some serious convincing to impress upon the consumer the value of the plants they are acquiring. Thats not going to be an easy task.
I no longer expect to make any kind of a living from what I do, and so I have shifted the emphasis of my breeding program to far more esoteric lines of pursuit. I don’t care if the results are “commercially viable” or if anyone else would grow them, I now breed to amuse myself. Some of my newest roses are freaks and monsters, but much more fascinating for their peculiarity. Many are things nobody would make room for in their yards, and thats fine, I’m not aiming to please anyone but myself now. I plan to venture as far off the road well traveled as I can.
*Sequoia Nursery used this model in years past, knowing fully well that a significant percentage of businesses that picked up Moore roses for their catalog would not pay the royalties they owed, or would do so only occasionally, or under-report the numbers propagated and sold to reduce the fees. The up-front license guaranteed that there would at least have been some compensation for licensing the plants.
I myself, Will not prop anything on the market that someone else is offering fairly. That being said, I get asked almost daily to prop things that are under patent. Even Knockouts? I can not walk in to many garden centers and see roses other than knockouts.But,they sell.
HMF and GW have become a place that many people will list every rose that they like, and put it on a want list, or just go down the list of people that do list the plant and ask them for the rose. Really not kidding … I see a few people that must do a lot of copying and pasting!
I have received some nasty letters from people over the last year, when I tell them NO I can not legally prop that plant. WELL, WHY DO YOU LIST IT? So people know the rose is not “lost” is usually my answer.
Do you want an introduction from this year that your local nursery does not have? Many people think it is a god given right that they can ask for, and expect, any plant that I have bought myself.
I got my nursery license earlier this year. Mainly, to prop old Ralph Moore roses, and other old rare varieties I have. As well as, to introduce roses myself IF I have something unusual. (I have also been asked to prop a fair amount of Paul’s roses as well.)
My line of thinking is, and I know others will not feel the same way, IF the rose is under 20 years of age, and is being sold by others, buy from them! Just because you do not have a patent on your plant, to me, does not mean that …Hey,it is a FREE rose. Some people do not look at the ethical side.
I understand (more so now)what it costs to produce a rose. I do not have the over head many others do. My water is for all purposes, free. I have reclaimed water from the City of St. Petersburg Fl. (yes, it costs me about 10$ a month … I use the water on my yard and ornamentals anyways) Works with my misting beds just fine. Containers, I reuse as much as I possibly can. I live in Florida, so I really do not need nor want a greenhouse. I am however, working on 10 acres of land in Pennsylvania as well. Would I need a large greenhouse in PA? Yes, If I wanted to overwinter a lot of my roses. (My sister does luckily have a greenhouse in the same town) Do I think 20$ for a mini rose is a tad expensive? YES. Full sized roses, I feel it is fair.
The turn around time is not the same amount of time as a full sized rose. I agree packaging supplies,shipping, and other things are expensive, but they are added on to the price of the rose in many cases so the person can make a buck. Not a bad thing at all though.
We all need to put food on the table. I would be terrified to try to make any money on roses in this day and age! One thing about this board is that, it does have a unique mix of breeders, retailers, people that work for retailers / nurseries, as well as some serious rose fanatics! And get this, They all seem to respect one another also!!! (Say what you want behind my back or to my face, I’m an adult!)
Long winded rambling aside, unless I had permission to prop a rose from the breeder, or it is out of patent, I will not mess with it. What has happened with Ralph Moore’s stock, for the most part,while horrible,should be a lesson learned by all the others who come after him.
I feel that even if you can breed something that is unique, the fact is, many others will look at it as only being a plant. They will trade it and call you the “rose police” if you say something to them. Whatever they must do to feel they are in the right. Fine by me. I do not even bother at this point.
I bought 210 different Ralph Moore roses, as well as more roses by other mini breeders, when Nor East closed last year. I had people complaining when they found out I had a large order. I tried to explain that my order was not slowing down other orders, to my knowledge. I planned my order with them best I could.(AHEAD OF TIME) Odd that less than a year later,more than half of the people that had rude comments have come to me to ask me for roses. I resend them the postings in a reply and tell them pound salt.
I did what I did because of the price, and the fact is that no one outside of California had the roses I wanted and could ship to Fl. Plus, I do not have a huge tract of land in St. Pete. So, I decided to try minis. I now have around 250 Ralph Moore minis, and I have stopped for the most part, really even listing them / updating HMF with new ones. I focus on keeping my collection alive, finding other roses he bred before he passed away,and breeding minis as a hobby.
Do I want to be the last person holding some of his varieties? No, but I have found that, at least for now, for me, it will be easier for me to pass them on to rose societies to make sure that his varieties do do not get lost. Other than that, I take cuttings just about every week. I am happy to have a repository of rare roses. But, I will not be bullied one moment, and begged the next. I’m 38 years old (almost 39) I hope to have at least 30-40 years possibly 50, more years of gardening and breeding in front of me. Even then, I truly think I will not have even made a dent in understanding the diversity of some of Mr. Moore’s crosses.
I am almost in awe of how breeders could possibly make any money in this day and age. Property taxes alone are enough to make people think twice. I am happy to give my 50 cents to the breeder / patent holder. It is because of the work they do, that I get varieties that are the latest and greatest and do not have to raise thousands upon thousands of seedlings.
Sorry to get so “off point”!
Regards,
Andrew Grover
This is definitely a sticky subject. I do know if I had a nursery I would not say propagate Paul Barden’s roses until the have been out on the market for five years or so. My reason for this is his roses are one of the reasons people go to Rogue Valley Roses, and we need to do everything we can to try to support the few independent rose nurseries. Secondly Paul may not have a patent but as we are all breeders we know how hard it is to find something truly special. So a few roses I do not believe is showing disrespect but when a lot are propagated it is short of showing disrespect in a way. At least that is the way I see it.
Now if their was a rare rose that lost it carrier and has not been on the market too long I would try to come to some terms with the breeder even if I could propagate it to my hearts desire because it had no patent. Older roses that are not under patent I would not worry about because most likely several sources are propagating them at their whim. it would be a shame if say some of Ralph Moore’s or other peoples roses disappeared. Granted maybe some are not that great and should die off but their are great roses out their who will be extinct if someone does not take the effort to protect them for the future.
On the price of roses I agree that it does seem ridiculous. But it is a touch business. For one thing you have to compensate every year for the roses that won’t sell so their is something to the price. Taxes are another thing. Shipping is huge. Just consider what the post office charges for a letter (interesting note when Ben Franklin ran the post office the average amount of time to deliver a letter was faster than it is now days). Next you have to spray because people do not want to introduce bugs to their garden and wholes in the leaves will not get return business. To top it off you have to deal with big box stores who sell plant for five bucks or so. In the past big box store obtained their plants from these nurseries but more and more they obtain most of their plants from nurseries they own ran by people who know little about plants. This makes your prices look expensive even if your plants have far better quality. Plus many gardeners fail with these plants from the big box stores and never come back to roses. It is a wonder there are any nurseries left.
So those are just some of my thoughts.
Agree 100% Adam. I was not saying I’m not propagating Ralph’s roses , quite the opposite. I want to have as complete of a collection as I can. Granted some will never be my favorite.
But, it is a lot of fun (to me) looking over a timeline to figure out what roses he was working with, at least to some degree, at any given time. It has really given me insight on modern mini roses I would never have gotten any other way.
I do hope the University of Texas can figure out what to do with the collection they have. Even with a days notice of say a flood in my area, you bet I would be outside digging up plants.
Spraying is something I only do with the mildest of chemicals. Blackspot is a big disease in my area, but, I do try to let the plants get a little natural immunity .
I would try to keep a flat rate on shipping only because it would be easier ( I think ) on my end.
The number one reason I do go to Rogue Valley Roses is Paul’s roses. Number two reason, the customer service rocks! When they say didn’t you just order from us not long ago? It makes my day!
I honestly didn’t think my question would provoke the discussion that it did. I learned lots.
I’m also glad to see that there is a tremendous amount of honesty here.
So IF someone wanted to propagate a rose and was able to contact the originator, does one propagate and send a check or ask first? I just want to make sure for future reference I do this the right way.
In my opinion, to be honest, whether or not I could propagate a rose bred by someone else and then send them a check doesn’t really seem like the main concern of this topic to me. Were I approached and asked to do something like this, I think my first reaction would be to direct the questioner to a nursery that already sells this rose and, hopefully, is paying royalties to the breeder. If I were to propagate it myself (even if I had the best of intentions, was asking a fair price, and could find some way to pay a royalty to the original breeder), not only am I taking business away from an established nursery (and we have all been lamenting the closing of specialty nurseries for just these kinds of reasons), but I’m also contributing to what is essentially a grey market in roses. Is it illegal? No, as many folks on this thread have said. Is in unethical? Well, again, even with the best of intentions, I tend to think so. In my experience, people who approach independent dealers/breeders and ask to have someone else’s roses propagated are looking for a cheap deal and that’s about it. The point, at least the way I see it, is not to be concerned about what price these people would be willing to pay, but to educate them that the prices that are charged by specialty nurseries are in line with what should be paid in order to realistically maintain the industry.
Just my two cents… 
Andrew I can understand having a complete collection. It must be interesting to see as many of his roses growing in one location. I would also find it interesting if you had some of the interesting parents growing with these that he did not breed like Little Darling just to see where things came from.
Jeff if you want to propagate a rose for your own personal use I would say it is ok just to propagate it. If you are planning to sell it I would contact the breeder but I do not have a opinion whether it should be before or after. It would be nice probably to do it before but some things are best done when things have the right timing (example some plants root better at a certain time of year) and it may take a while for the breeder to get back to you so you may not want to wait. I think the important thing is you make the effort especially if you are propagating a fair number of roses to sell but this is still totally up to you because non patent roses put you under no obligation to do this. It is just the nice thing.
Peppa while I agree with you I do have to defend some of these people to a limited extent. Some of these people may not understand patent laws and why nurseries should not be asked to propagate them. Some may not understand how hard it is for some of the smaller nurseries to survive even in the best of times and why they are even important to keep around. They may not understand how hard it is to breed something. Lastly they may not want to go somewhere else maybe out of loyalty or just because it is easier to get everything at the same place. But I do agree with you.
I do like this thread it is interesting to see the opinions.
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The problems for amateur breeders is that patents are too expensive even if one takes advantage of the discount provided for non-commercial breeders. What is needed is an effort to reduce that costs.
Provided that one writes their own patent application then the costs of obtaining a plant patent are strictly bureaucratic. The RHA might take on the mission of lobbying the bureaucracy to reduce those costs, perhaps in alliance with other plant breeding and propagating organizations.
Patent enforcement is even more expensive than obtaining the patent itself but you can’t take an enforcement action without first having a patent.
My thoughts run parallel to Don’s. Isn’t it unfortunate that amateur ornamental plant breeders’ rights are restricted to the patent process? Would breeders of ornamentals exchange a streamlined process and a shorter term of exclusivity for the 17+ years of exclusivity granted by patent? It’s probably a purely speculative because the USA is a party to the UPOV, but still. Blockbuster agricultural plants offer the prospect of worldwide profits for a decade or more. How often does that happen with ornamentals? Maybe Knock Out? What was the name of the blockbuster patent rose before Knock Out? Having roses in the same league with prescription drugs, medical devices, and silicon chips seems wrong. Without a national and international marketing arm, it’s hard for an amateur to justify the expense of a patent. How many of the roses on this list were bred by amateurs? Dream Come True…what else?
“Without a national and international marketing arm, it’s hard for an amateur to justify the expense of a patent.”
Indeed. Janet Inada has several times tried to get me to consider patenting my roses, but every time I decline, citing the likely scenario in which in which the rose never enjoys sufficient sales to even recover the cost of the patent, let alone make a profit. Neither of us has the marketing machine in place to pull off a David Austin. So, why would I want to do this???
(Why would I want to do this???) You wouldnt! Knowing somewhat about patents and enforcement I wouldnt spend one thin dime on them. The marketing is a big part and gets expencive but it`s a real rat race dealing and keeping your nitch with the mass merchants. Keep in mind they rolled over everything else so expect to see Chiness roses flood in here and it will make little difference whose or how long they last. You need to be really motivated to share your profits with your silent partner the tax man and other (fees) especially when theres a parade of enforcers with thier check lists. The biggest tribute I would think is a rose still around 100 years from now, but how to distribute. One step from the end of the earth the keyboards are different. Finally found where the (@) sign was on a misslabled key board. No spell check either.