GeraniumsOnline   

                                               

                                                                 

PLANT PATENTS AND BREEDER PROTECTION

By Wayne Handlos, Ph.D.

In 1930, President Hoover signed the Townsend Purnell Act into law making the

United States the first country to provide patent protection for plants.

So what are plant patents? Plant patents are just like other patents granted to inventors

except that they apply to plants and have their own special rules. United States

law “provides for the granting of a patent to anyone who has invented or discovered

and asexually reproduced any distinct and new variety of plant, including cultivated

sports, mutants, hybrids, and newly found seedlings, other than a tuber-propagated

plant or a plant found in an uncultivated state.” Plant varieties normally reproduced

from seeds are not included nor are tuber propagated plants like potatoes. Plants

discovered wild in nature are also excluded by this law

.                                                

As with any other patent an application must be filed (along with required fees –

around $1850 to 3200) to the U.S. Patent Office. The application “should include a

complete detailed description of the plant and the characteristics …in botanical

terms in the general form followed in standard botanical text books or publications

dealing with the varieties of the kind of plant involved (evergreen tree, dahlia plant,

rose plant, apple tree, etc. … The specification should also include the origin or parentage

of the plant variety sought to be patented and must particularly point out

where and in what manner the variety of plant has been asexually reproduced.

Where color is a distinctive feature of the plant, the color should be positively identified

in the specification by reference to a designated color as given by a recognized

color dictionary. Where the plant variety originated as a newly found seedling, the

specification must fully describe the conditions (cultivation, environment, etc.) under

which the seedling was found growing to establish that it was not found in an

uncultivated state.” In addition, photographs or drawing must accompany the application.

“If granted, a U.S. Plant Patent endures for 20 years from date of filing of applica-

cation. During this time, the breeder may exclude others from propagating the variety

or from selling or using the variety without the breeder's prior authority.” The

granting of a patent allows the breeder or his/her representative to collect a royalty

on every plant sold and thus to “catalyze inventor’s activity.”

 

Mutants or sports from a patented plant are not covered by the patent. If they are

considered marketable a new patent application must be filed for them. An application

for a patent must be made within a year of a plant being released for sale to the

market. Varieties that have been available longer than a year are excluded.

After an application is submitted it is assigned to a patent examiner and in nine to 15

months a judgment is made. If the application is accepted, within six months of the

payment of the fee, the patent and a patent number are granted.

All patented plants should carry a tag with the patent number (common on roses)

and in trade catalogs they should be listed with their patent number. Now in the era

of the internet it is possible to gain access to all the plant patents that have been

granted. They are available on www.uspto.gov/ , www.patentgenius.com ,

www.patentstorm.us/ , www.freepatentsonline.com . Google has a Patent Search

application which is found by clicking on “more” on your browser page, then “even

more” and then scrolling down to Patent Search. If you get tangled up in the search

process, the Class is PLT, the subclass for zonal geraniums is 325 (there are subcategories

for color: 327 for peach, 328 for pink, 329 for purple, 330 for red, 326 for

white), ivies are subclass 332 and regals are 331. There is no distinction between

Geranium and Pelargonium in the patent office!

 

Once you get to a plant patent you can learn a number of things. There you will find

the name of the “inventor” (breeder or discoverer) of the new variety. An assignee

is also listed (this is usually a large horticultural company). The patent also includes

the varietal/cultivar name of the new plant. There is also a description of the parentage

of the plant and the breeding method by which it was produced. Sometimes the

plant is the product of an induced mutation and this is also noted. There is a full botanical

description including color, number and size of floral parts, etc. The plants

are usually compared to some other known variety. Favorable traits like vigor, floriferousness

and disease resistance are also described.

 

The following is taken verbatim from the patent: “ 'Fiscoral’ was originated from a

hybridization made by the inventor, Angelika Utecht, in a controlled breeding program

in Gaidar, Gran Canaria, Spain, in 1994. The female parent was the patented

variety 'Fizzard' (U.S. patent application Ser. No. 08/968,044) which is characterized

by having a single form, bright red flowers, intense green, slightly zoned foliage,

vigorous growth, and very early flowering response. The male parent of

'Fiscoral’ was the commercial variety 'Gauguin', the original name used in Europe

and known commercially in the United States as 'Nanette' (U.S. Plant Pat No. 7,360)

and designated as 'Guitari' for Plant Breeders' Rights application, which is characterized

by orange-red semi-double flowers, medium green foliage with slight zonation

and moderately vigorous growth.” In the trade this is the variety Mandarin. (See image on label.)

As you can see from the foregoing example you may encounter a real problem when it

comes to the varietal name. Many, if not most, are not the familiar names of the plants you

buy at the nursery or big box store. Code names (often abbreviations of the trade names)

are frequently used and are the legitimate names according to the Rules of Nomenclature.

Sometimes these can be deciphered in other cases not.

For instance, the cultivar name ‘Balgaldepro’ would seem to translate into Ball’s Galleria Deep Rose.

 

‘Baldespep’ is probably Ball’s Designer Peppermint Twist. ‘Cante Coras’ would likely be Caliente Coral.

‘Surfin’ Lilac’ is no problem. ‘Fizzard’ is beyond me.

 

The following information is found in the patents just mentioned. ‘Balgaldepro’ “is an irradiation

induced sport of Galleria.RTM. Pink Punch `Balgalpipn`, U.S. Plant Pat. No.

11,925, characterized by its semi-double type medium pink-colored flowers, medium greencolored

                           foliage, and semi-trailing growth habit. The irradiation occurred on Aug. 15, 2000.

The new cultivar was discovered as a side shoot and selected on January 2001 in a controlled

environment at Arroyo Grande, Calif.” ‘Cante Coras’ (Caliente Coral) has Pelargonium

tongaense in its parentage. The regal ‘Surfin’ Lilac’ from Sakata in Japan “originated

from an open pollinated population of Pelargonium which consisted of one female Pelargonium

line and approximately 100 male breeding lines in Kanegawa, Japan in 2001. The female

parent breeding line is the publicly available Pelargonium variety `Surfing Purple`…”

And it goes on and on.

 

Many countries in the world do not allow plants to be patented. However, there is a belief

that breeders should have some form of protection. The UPOV (International Union for the

Protection of New Varieties of Plants) provided for this need. In 1970 the US passed the

PVPA (Plant Variety Protection Act) which protects sexually produced plants, F1 hybrids

and tuber produced plants. This act requires seeds to be deposited in a seed bank (National

Seed Storage Lab, Ft. Collins, Colorado) and in the case of F1 hybrids seeds of the parental

strains must also be deposited. This protects the gene pool as well as protecting seed producers.

The criteria for being protected by this statute is that the variety is new (and had not

been sold commercially for more than one year in the US), is distinct and distinguishable

from other varieties available at the time of the application, is uniform (or predictably variable)

and is stable. Two exclusions are mandated in this act. 1 - Farmers are allowed to

save seed for their own uses and 2 - breeders and researchers have access to these varieties.

This legislation has been used primarily for food and field crops but a few flowers crops

have also been protected (Chinese asters, dahlias, cosmos, coleus, nasturtium, zinnia).

 

Plants can also be granted a utility patent for some unique, usually useful, characteristic(s).

A few of the horticultural companies have been granted such patents. Most of the utility

patents on plants are granted to corn (maize) and soybean varieties. Ball Horticulture has

obtained patents for tissue culture plants and a method from producing transgenic impatiens;

Goldsmith has obtained patents for petunias with dwarfing genes and male sterile Catharanthus

(Madagascar periwinkle or vinca);

 

Oglevee patented a method for producing lily

bulbs from scales, and a procedure for precision flowering of regal pelargoniums.

Pan American Seed Co. has patented Impatiens with the star or picotee pattern in the flower.

It is generally believed that you can propagate patented plants for your own use. But following

the letter of the law you should have permission from the originator to sell additional

plants. However, the additional questions arise: What do you do when a patented variety is

no longer available on the open market? If you have one of those plants can you sell to your

friends?

 

 

 

 

 

 

                                                                                                                                         

 

 

 

 

 

 

 

 

 

© 2010, Central Coast Geranium Society (CCGS )