Kelly:
Here's where the patent system gets a bit murky. I have communicated with Gary in the past and he seems to have found his plant independently of yours. If he had been aware of your plant when the patent papers were filed, then it would not have been legal to patent his plant. It is possible to have the granted patent challenged, but this requires a patent attorney, DNA testing, and therefore would likely not be economically feasible. It is much easier to challenge a patent before it has been granted, sans lawyer, but the US Patent and Trademark Office makes it almost impossible to do so, without posting all of the pending patents.
In the past, the patent office has ruled that similar plants/sports were all considered the same, but that was changed nearly a decade ago with the advent of genetic testing, so you can now have a similar sport that is not pre-empted by a granted patent...of course, DNA testing to determine this is not cheap.
This is exactly why we set up our Agave gallery to document the agave sports, their dates or origin, originators etc., which hopefully will prevent another such problem the future. We work very closely with many of the marketing firms that manage the patents and are often asked if such a plant already exists (which was the case with Gary's agave). If we had known about your plant, then we would have advised such and the plant would probably never have been filed.
My suggestion at this point would be to contact the patent holder and see what you could work out regarding propagation, etc. I hope this helps.
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