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 onwww.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.
For instance, the cultivar name ‘Balgaldepro’ would seem to translate into Ball’s Galleria Deep Rose.
‘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.
environment at Arroyo Grande, Calif.” ‘Cante Coras’ (Caliente Coral) hasPelargonium
tongaensein its parentage. The regal ‘Surfin’ Lilac’ from Sakata in Japan “originated
from an open pollinated population ofPelargonium 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 availablePelargonium 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 sterileCatharanthus
Oglevee patented a method for producing lily
bulbs from scales, and a procedure for precision flowering of regal pelargoniums.
Pan American Seed Co. has patentedImpatiens 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