Henry Bosenberg's Plant Patent #0001 was created using the name, ‘New Dawn’, but thousands of patents later, gardener’s find themselves owning Hydrangea ‘XQYPZ32’, but buying it as Tiny Tot™ Blue Dream®. This confuses many, and often makes talking about our gardens difficult and full of mistakes, so what the heck is going on here?
The Basic Rules
Most gardeners are familiar with the basic rules of naming plants, but to summarize for those who aren’t, every plant has at the very least a two-part name. A genus name, which is rather like our family name, and a specific epithet, or species name, which can be compared to our first name. The genus comes first, capitalized, followed by the specific epithet, and always in italics – Acer saccharum, the sugar maple, for example. Tacked on to this name may be additional ones related to the plant as it grows in the wild. The most common are subspecies (subsp.), variety (var.) and forma (f.) which are subsets of the species with distinct characteristics, found in the wild. The modern tendency is to eliminate these as much as possible, as many are simply odd specimens collected by over-enthusiastic botanists. Some of the differences are interesting enough to attract gardeners, so we still find them being grown - Acer saccharum subsp. nigrum, black maple, for example.
More widely seen among garden plants are cultivars. These are plants produced by human effort – complex breeding programs, a chance seedling, or an odd branch on a tree. Whatever the source, these are usually only propagated from cuttings or grafts. They have a name in single quotes, such as ‘Columnare’, a narrow, upright form of sugar maple. There are complex rules on creating these names, and international committees to monitor them, but for a long time, that was all there was. This naming system served us well, and everyone could in theory, and usually in practice, know what names to use, and could freely grow any plant as they chose. Name changes by botanists improving the system can be frustrating to gardeners, but that is a different subject.
Patenting Plants – ‘Only in America’
After ‘New Dawn’, all that changed. Bosenberg worked for Somerset Nurseries, in the town of New Brunswick, New Jersey. He found ‘New Dawn’ as a novel branch growing form a bush of another rose called ' Doctor W. van Fleet '. In fact, it was the nursery owner, Louis C. Schubert, who owned the patent, Bosenberg is listed as the inventor.
All this immediately raises a question that vexes many gardeners today – how do you ‘invent’ a plant which you merely found growing, and that caught your eye? An invention is legally considered to need three things to create a patent:
Must be new, useful and non-obvious
Must be an art, process, machine, manufacturing method or composition of matter (i.e. a recipe)
Must be possible to disclose the process so that someone else could do it again
Only the first of these things seem to apply to ‘New Dawn’, or any other plant, and so around the world, you can’t patent a plant – except in the USA. Congress long ago decide that ‘everything under the sun that is made by man’ should be patentable in principle, and that putting a specimen into a collection open to the public is sufficient ‘disclosure’. Although we might more plausibly argue for a patent that is the result of a breeding program, it’s hard to see it applying to that shoot the Bosenberg plucked – all he did was graft it onto a rootstock, which is not a patented art. But in America it’s possible, and new plants are being patented every year. It used to be about 100 a year in the 1960s, but today it is over 1,000 a year. Plant Patents last for 20 years, and they only apply to plants propagated vegetatively – you cannot patent a seed strain. The patent gives you control over the vegetative reproduction of your plant, and everyone who does it within the USA must pay you a fee. Only within the USA, because plant patents have no power across the borders, since you can’t patent plants anywhere in the world but in the USA.
The View of the Rest of the World
The rest of the world takes a different view. They recognize that someone who works to create a new plant should be rewarded for their efforts, but they see new plants only as Intellectual Property. That is, like a book, a piece of music, software, or a work of art. All these things are products of the mind, not inventions. In Canada, for example, American Plant Patents have no value – they have a system of Plant Breeder’s Rights, based on legislation which in many ways gives more sweeping rights, for any plant that is ‘new, distinct, stable in reproduction, and uniform within commercial limits’. It covers seeds too, and so it’s very useful for anything from annual flowers to wheat and lawn grass. These rights last 20 or 25 years, depending on the type of plant. You might notice that this is considerably less than Copyright on things like books, which typically lasts for 70 years after the death of the author.
Many other countries have similar laws, and almost all conform to the rules of The International Union for the Protection of New Varieties of Plants (UPOV). This union is headquartered in Geneva (like many global bodies) and most countries tailor their laws to fit the rules decided by UPOV. The USA is a member, but a limited one, since it only accepts the parts of the rules that apply to plants grown from seed – those not able to be covered by US Plant Patents.
Keeping the Ball Rolling with Trademarks
Now all that is fairly straightforward, but you will notice that ‘New Dawn’ long ago ran out of patent protection, so we can all take cuttings if we wish to – a beautiful old rose it is, and well worth growing. Lawyers also noticed that 20-year limit, and wondered how it could be overcome, so that patent owners could reap their rewards for a longer time. There is no way to extend a patent, but there is a form of protection that lasts a lot longer and is enforceable everywhere – trademarks. Trademark registration is only good for 10 years, but it can be renewed indefinitely. So a trademark lasts forever. International trademark registration is relatively easy, so it protects a product around the world.
Here is the strategy devised for plants, to get the longest possible financial reward for the inventor. First, choose a strange cultivar name for the patent - ‘MicJur01’ – a Magnolia; ‘UEB 3727/4’ – an apple; 'Radsunny’ – a rose; or `ROBBUXUPT` - a boxwood variety, are some real examples. Now register a name that is easy to remember and has market-zing as a trademark for the plant. That boxwood called ‘ROBBUXUPT’ becomes Uptight™ Boxwood. No one is going to use that cultivar name, even when the patent expires, so the owner gets to collect trademark fees for ever. Legally, ‘TM’ is a claim that you own the name, while ® shows it has been registered as yours.
Here is another example. You have probably seen a popular apple in the supermarket called Pink Lady. It’s a very nice apple, and everyone knows it by that name – it’s a big seller. What you probably don’t know is that its cultivar name is ‘Cripp’s Pink’. Not such a bad name, but once the apple became popular as Pink Lady - which is, as we might expect, a registered trademark name – no grower is going to try and sell their apples as Cripp’s Pink, even when that patent expires. So every tree planted pays a fee to the trademark holder, and we continue to eat Pink Lady apples. As a rule, patents lose value as they age, because they are closer to expiring, while trademarks increase in value the longer they are around, as public familiarity with them grows.
Another related practice that can cause confusion is collecting plants together in a trademarked Series. Here is an example. Breeding Buddeja bushes that don’t seed has become a busy field, since there has been bad publicity of these plants taking over in natural places. One breeder has a patented cultivar called ‘Podaras #8’. It is part of a series he produced, all trademarked as Flutterby Petite®. Each color also has a trademarked name – for example the blue one is called Blue Heaven™. A gardener can easily end up using any of these names individually, causing considerable confusion, although one correct way to name it would be Blue Heaven Flutterby Petite Butterfly Bush – quite a mouthful! Looking at plant labels in the garden center can be confusing, but that seems to be of less concern than protecting the plant from being reproduced without a fee being payed.
Now if this all sounds a bit dry, and not of much significance to gardeners, it has in fact brought sweeping changes to the plant-growing industry. It is the main reason you see new plant varieties for sale every time you visit your local garden center. Older gardeners will remember that it didn’t used to be that way – there were a few new varieties each year of plants like roses and iris, but otherwise, something knew came along only rarely. UPOV began in 1957 with noble goals. In their words, to encourage the development of new varieties of plants, for the benefit of society.
The end results have perhaps been different. On one hand we have protected seed crops, which many activists claim is holding farmers in third-world countries for ransom, stopping them saving and re-sowing their own seed. Then in our gardens we have a constant flow of new plants, which many will agree rarely live up to their promotional material – although some certainly do – and which soon fade from sight. They have displaced older, reliable cultivars which don’t generate patent revenue and become increasingly harder to find, and can we really consider all this of real benefit to society? What is often forgotten is that a patent is not an indication of merit, merely of uniqueness. It is not a recommendation of garden value.
Perhaps the least we need is an independent testing process, modelled on the Royal Horticultural Society Field Trials in the UK, to test out these new plants, comparing them to older cultivars, before they are released onto the market – not afterwards. That way we would know their value more clearly before lining up at the check-out.