Great Plants and Plant Patents: Millions to be Made?

Hello Everyone,

Hort Shorts are often generated from gardener questions. This has been a wonderful dogwood year that brought one of those questions forward. A gardener couple from Elmore County called about a special volunteer dogwood seedling they had transplanted and watched mature in their backyard. The white dogwood had large abundant blooms (or bracts), about 5 to 6 inches across. I asked if they were thinking of a plant patent. Their interest was not in the potential pot of gold at the end of the rainbow but, like most avid gardeners, they were excited to share their find and see if it could be propagated. Of course, if it was a valuable find, they would welcome the reward. This opens an opportunity to discuss the legal and practical process of plant patents.

Getting a plant patent is a long way and many dollars from getting a plant to market. I have watched many people with beautiful, deserving plant treasures struggle and fail in negotiating the long process of plant introduction. The process of getting a patent goes through the U.S. Patent Office where all information/requirements are available.

The basic things to know are: ·

• The plant must have been found or developed in a cultivated setting and not from the wild. It must be proven unique, not necessarily better, from other cultivars in the trade.

• The plant must have been proven to be able to be propagated asexually and be a clone of the original plant. It should retain all the distinguishing, unique characteristics of the parent plant.

• The patent is valid for 20 years from the date of filing the application. No one can propagate or sell this plant without the approval of the breeder or patent holder.

• If you have a potential candidate for a plant patent, do not allow it to appear in public print. It can jeopardize the patent process. The patent must be completed within one year from public announcement of the new plant’s existence.

• The patent ownership must be shared if the plant is discovered on another person’s property or if it is propagated by someone else who was not contracted to develop the propagation procedures.

A patent attorney is not required but recommended. The patent law stipulates that the Patent Office must help independent plant developers with the patent procedure. So, it can be done without attorneys but knowledge is needed for a thorough botanical description of the plant and patience and skill for being able to meet the meticulous standards (government red tape) of the patent process. We have helped growers with plant patents at Auburn and found the Patent Office representative to be very helpful but the process does take several months to a year to document the plant growth, color changes and flowering and fruiting characteristics throughout the seasons. The patent costs $2000 to $4000 without the use of an attorney.

The story of the couple’s dogwood find was mentioned because although the flowers were large and distinct, there may be cultivars with flowers equally large. However, the other plant may not grow as well in the South. Many new introductions come from northern or western states and the “ecotypes” (species adapted to the specific environment of an area) do not perform as well in our southern heat. The plant may also be unique by being resistant to powdery mildew or very easy to root from cuttings. It does not have to be distinct just in terms of appearance. Many northern dogwoods do not do as well in the South. It is nice to select plants with superior traits from the area or “provenance” where the plant is native or adapted.

The rest of the story on patents is that it often takes millions of dollars in marketing to establish a new plant in the mass market and beyond collector’s niches. What many backyard breeders do is sell their patent to a nursery that specializes in new plant introductions or agree to some other arrangement on royalties for each plant that is propagated and grown. It is a nice option for those people who do not have the money, time, or inclination to embark on a large business venture. A twenty year patent sounds like a long time but the process sometimes takes that long for a plant to be recognized as “special”, propagated in large numbers, and become a recognized name that home gardeners, landscape architects, and designers request.

If you think you have a plant money-maker, stay calm. Do not put anything in print; get help to determine if it is a unique find; try to propagate it and verify that the unique traits are cloned; and explore your options for propagation, multiplication, marketing and distribution. Or, the other option is to drag up a chair, relax, have a glass of wine and enjoy the view. Of course, you would not be a true gardener if you did not call your neighbors over to offer them a piece (cutting for division) of your great find. That would be my easy choice but it is nice that, like plants, we are all different and others would be much more ambitious and entrepreneurial. Cheers to plant and people diversity. It is nice to know that we are all unique, special and patentable (if we did such things with people).

Please come back often and enjoy HortShorts as much as I enjoy posting them for you. Your enthusiastic plant response is always encouraged and welcome.