Plant patent – how can anyone claim to own nature?

In the world of nature-lovers and horticulture, certain plants are marked with a ® or ™ symbol. This is the mark of a plant patent.

Does this mean nature is up for grabs by anyone with the ambition to own it?

Let’s check what it means, both to the letter and to the spirit of the letter.

Some of your own houseplants or garden treasures may actually be patented already!

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What is a plant patent?

A plant patent attributes the plant patent owner rights to exclusive commercial gain for a specific plant variety.

Basically, a person or entity that files for a plant patent holder controls who can earn from propagating and selling that particular plant variety.

The patent is usually a number that refers to particular entry in a database. This database is managed by each country’s Intellectual Property agency or administration. You should always contact them for more details on how to patent a plant and other legal information.

  • In the United States, this is the United States Patent and Trademark Office (USPTO).
  • Plants are usually marked with a “®” symbol. Sometimes the initials “PVP” (Plant Variety Protection) or “PBR” (Plant Breeder’s Rights) are added to the name. “TM” means the name itself is branded and should not be used for other purposes.

Conditions and applicability of plant patents

  • 1 – The plant variety must have been bred or discovered as a cultivated plant.

A cultivated plant is one that is grown already either in a field or in a greenhouse, eventually a laboratory. Plants found in the wild cannot be patented. A farmer, planting his own seeds, who discovers a sport or a unique vegetable in his or her field may file for a patent for that new variety.

  • 2 – What is protected is that single specific cultivar only.

Any type of vegetative propagation, (cultivar cloning, cuttings, perennial division…) is declared illegal. Cloning or vegetative propagation reproduces the plant with the exact genetic material. Propagation for your own personal use is also prohibited in the legal definition.

However, in most cases seeds the plant may bear are not protected. This is because seeds arise from sexual reproduction. Offspring will necessarily have different characteristics than the parent plant. Since they will be genetically different from the protected parent plant, seed-grown offspring normally aren’t covered in the initial patent.

  • 3 – The plant must not have been patented yet.

Of course, the description is checked to verify that this is the first time a patent is filed for this plant.

Why does it make sense to have a plant patented?

Work deserves pay

Pink flower with semi-double blooming, a patented rose variety.As described above, identifying a specific variety and learning how to grow and propagate it is a lot of work. Usually, years of work are needed to identify and properly describe a special, unique variety.

Patenting the plant helps guarantee revenue for the breeder. It’s a way to “pay back” the time, work, and expertise. Patents ensure that people who are passionate about growing new plants can actually make a living from it.

If not for patents, people interested in the field wouldn’t be able to dedicate their whole time to their passion. They would have to work a livelihood in a different field to survive and feed their families.

Greedy people could take their discovery and profit from it without sharing back. This disrespects the time and effort put into creating and selecting the unique variety.

As you’ll read in the next part, finding the right cultivar a costly endeavor.

Patents can help develop new plants

With patents, plant breeding professionals and horticulturists are able to earn from producing unique plants. They have both the resources (time and funds) to develop new plants, and the incentive. Indeed, those passionate people are exactly where they should be to create new plants and streams of income:

  • they do what they love doing
  • they get better and better at it
  • and they can earn a living from it

To also show that their work will benefit the common good, an upper limit is set as to how long the patent is valid. Once that time span is past, anybody can start propagating the plant and earn from it.

How can you earn with a plant patent?

As the patent holder, you decide who is allowed to propagate that exact variety that you developed.

  • You can set up a horticulture farm that will grow, market and sell the plant. Nobody is allowed to sell that same plant but you and your team.
  • You can also grant rights for others to do part or all of the work, against payment. This takes the form either of licensing or of royalties.

Granting a license to another person or entity means they pay you to grow, market, or sell the patented plant. They pay you a bulk amount and it’s up to them to earn from it. It can be an exclusive license (only them) or a shared license, or anything in between (exclusive for certain time or geographical location).

The other option is royalties. Partners will produce and sell your patented plant, but will give you a commission, a fraction of the sales.

All of this is negotiated constantly, there’s no rule as to what may happen! It’s usually a combination of all three (self-promotion, licensing, royalties).

Example:

  • For the newly developed ZZ raven, the patent holder is Van Winden Erica S.A., a Dutch family-owned company.
  • They partnered with Costa Farms, which is the only horticulturist allowed to grow the plant in the United States for profit.
  • However, the license for selling isn’t exclusive to them: partners who have negotiated the right to grow the plant in other countries are allowed to market and sell the plant in the US, too.
  • This means it’s also possible to purchase your Zamioculcas Raven from abroad and have it delivered in the United States. But you can’t propagate and sell it!

Advantages of buying a patented plant

Typically, the main advantage of purchasing a patented plant is that you won’t be disappointed.

  • A patent implies the certainty of getting what you paid for.

Indeed, plants with patents were tested and grown in a variety of environments and growing conditions.

Depending on what is advertised, they were proven to be less vulnerable to disease or more prolific flower/fruit bearers than their parent counterparts.

Just as with many things where beauty is involved, you’ll be at the pinnacle of fashion. Marketing hype creates a buzz and getting new sought-after plants helps feel part of a community.

  • Lastly, with a patented plant, the reputation of the nursery and horticulture store is at stake. In case of problems, you may sometimes return the plant for advice, replacement or refund.

What qualifies a plant for a patent?

There are a few key points that will hint that a particular plant is a good candidate for patenting.

The desired plant must combine several key characteristics

Patentable cauliflower varieties, purple, fractal and orange.Any candidates must combine special properties to be deemed worthy of a patent.

  • A rose tree that never bears flowers would probably not sell very well.
  • It would be impossible to recover costs.

So only plants that meet all desired characteristics are relevant:

  • hardiness,
  • bloom size,
  • flower color,
  • pest resistance…

It takes a lot of trial and error to find the right one! Different ways such plants may appear include hybridization, mutations, and cross-pollination.

Characteristics must remain “stable” even after propagation

Blooming, size, fragrance, shape, fruiting are all unique to each plant. Sometimes a particular trait (such as variegated leaves) may disappear when the plant is propagated.

A breeder must thus find that single plant that will constantly “stay the same” even after several rounds of vegetative propagation.

  • For example, citrus like the lemon tree and orange tree need years to grow and mature to the point of bearing fruit.
  • Checking stability requires at least two or three generations.
  • It’s not seeds that are reproduced, but cuttings. These are collected only when the parent plant has proven itself to have all the desired characteristics.

Potential profits should cover research and patent costs

This is the most unsettling part of the decision process. Indeed, most of us gardeners generously give time and efforts to nature and neighbors. Whether we deal with flowers or vegetables, the more we grow, the more we are able to give!

Thinking about earning a profit and blocking others from benefiting of something natural isn’t something we like. It usually draws feelings of anger and raw emotion worse than an invasion of aphids!

  • However, for a breeder, fortunes have been invested that must be recovered.

Also, part of the joy of creating something wonderful is sharing it to the world. Until the “giving economy” becomes a reality, the best way to go forward is to insert the new wonderful plant onto the current marketplace.

  • The market economy is an opportunity that helps spread new plants to all who might be interested. It might not be perfect, but it’s effective.

Examples of patented plants in every day settings

Most plants you might find in your local garden store are actually patented plants.

Patented vegetables

In the vegetable patch, most plants grown from F1 hybrid seeds are patent-protected. They were selected for their fruiting, disease resistance, and hardiness among other characteristics.

Patented garden flowers

Iris seed pod forming with patentable seeds inside.A garden flower such as Sunpatiens is a patented variety of the generic Impatiens family. It was bred to resist full sun whereas a normal Impatiens prefers part shade.

In terms of cold resistance, for example, the rather common Garvinea is a special Gerbera that was patented for its cold hardiness. A normal gerbera dies at the first frost, but a Garvinea will hibernate and burst forth again in Spring.

Interestingly, although many Iris flowers are patented, the seeds they produce aren’t covered in the patent. This is because the seeds produce offspring that are often wildly different from their parents.

In the orchard: patented fruit trees

For fruit trees, many of the current varieties on the market aren’t patented. They’re usually produced from cuttings of very old tree families. For example, the Picholine olive tree has been around for centuries. We are now freely benefiting from the work of generations of past breeders who selected their orchard trees with patience and passion. However, many modern Citrus tree varieties are patented.

In the home: houseplant patents

A definite set of plants that are targets for research and patenting are the many indoor plant species. The Zamioculcas Raven mentioned above is one example, but specific types of Monstera, Dracaena marginata (the “Tarzan” cultivar is patented), and others also boast unique foliage or properties that breeders strive to patent.

Flowering Begonia maculata Tamaya is a patented blooming houseplant variety, marked as special for its wonderful spotted leaves.

Forest management and patented tree varieties

In forestry, often times new tree seedlings are cultivated to create vast tree plantations. Having a specific cultivar, often patented, ensures a homogeneous wood harvest.

How long do plant patents last?

In the United States, and in most countries that comply with the General Agreement on Tariffs and Trade (GATT), plant patents are set to last 20 years.

The “start date” is the date the patent is granted.

  • In most cases, plant patents last two decades
  • In the past, US plant patent duration was of 17 years only. Since 1995, the new duration stands.

This means that after twenty years, restrictions on propagating the plant for sale and commercial gain are lifted.

Many wonderful creations of passionate hydridizers and breeders of the past are now free for all to grow and sell. From the wonderful Robin Hill Japanese Azalea group that Robert Derby Gartrell developed after World War II, to the earlier fragrant David Austin roses like the Auscook rose shrub (and other “Aus” series), new plants have become a gift to all!

For example, just last February 2019, the patent for the fabulous Geranium Rozanneâ„¢ expired. It’s now possible to propagate this hardy and heat-resistant long-blooming geranium!

Two Geranium Rozanne blooms, a flower that was patent-protected until February 2019.

Should plant patents be revoked?

On one hand…

…passionate breeders set out to pioneer new plants. Fired up with enthusiasm, they work with nature to co-create wonders that truly make the world a better place.

Fragrance, form, beauty, resistance, hardiness… These people are visionaries who are on a quest that help people grow food easier and take more pleasure in contemplating nature – and our own place in it!

Who is to say they shouldn’t be protected in their generous idealistic endeavor?

On the other hand…

…anonymous power-seeking company board members decide to maximize profits over all else. They tweak new, resistant, fast-growing plants until they can’t reproduce through seeds to lock growers in a buy-grow-sell-buy cycle.

The same lobbies set crazy demands that over-regulate the market and lead to steep market entry costs. A simple farmer growing prize squash can’t even sell seeds to a neighbor without risking legal issues. Even putting back together a patented Pothos plant your cat ripped up puts you at risk of illegal propagation if any of the stems start sprouting new leaves!

Who is to say they shouldn’t be stopped in their power-fueled conquest of life?

What are your thoughts?

Smart tip about patented plants

Multiplying a patented plant is strictly prohibited. But keep an eye out for anything unique growing in your garden – perhaps it’s worth patenting!

Also remember, in many cases seeds produced aren’t covered by the patent.

Read also


Credits for images shared to Nature & Garden (all edits by Gaspard Lorthiois):
Tree design with money by Gert Altmann under Pixabay license
David Austin patented rose by Lynn Greyling under Pixabay license
Plant patent pending purple cauliflower by Simon Law under © CC BY-SA 2.0
Iris seed pod by Alan Levine under © CC BY 2.0
Geranium Rozanne now patent-free by F. D. Richards under © CC BY-SA 2.0