Patented plants, plants with registered trademarks.
What does all of that mean? What is a person/backyard grower to do?
Without a doubt this is an extremely confusing and an intimidating subject and as far as some are concerned the more intimidating the better.
I need your help with this and I will explain.
Lately I have been talking a lot about beautiful plants that are being kicked to the curb by our industry and I will continue talk about this for a long time to come. I brought this up in an Email a couple of weeks ago about Big Business trying to control what we are doing in our backyards and most of you were on board, a few accused me of being some “Crazed Tea Party Maniac”.
Nothing could be further than the truth. But I believe that what is right is right and what Mother Nature gave us is what Mother Nature gave us.
Mother Nature did not say; “I think I will create this beautiful plant and drop it on the property of the XYZ Corporation so they can lock it down and control it forever.
Sorry. That’s what I believe to be true about plants and nature. Now if the XYZ Corporation hires a team of plant scientists to work in a lab/greenhouse environment doing cross pollinating and whatever else they do to deliberately and intentionally create a new and beautiful plant that the world has never seen before, then by George that is your plant and you are more than entitled to patent it, name it and protect the name of the plant. That’s why we have a patent system in the first place.
But in the nursery industry the plant patent system is being treated very differently than it is in other industries and it’s because these growers (farmers really) are intimidated by the process. At least those are my thoughts.
This is not Legal Advice. This is Opinion, and My Opinion at that.
I am not a lawyer so please don’t accept this as legal advice. I’m a Dirt Farmer in Bib Overalls. Those are my qualifications to talk about this. So take my advice for what it’s worth.
The difference between a plant patent and a plant with a name that is a registered trademark.
There very much is a difference between a plant that has been patented and plant that only carries a name that has been granted a trademark on the name of the plant. To the best of my understanding, a trademark protects the name of the plant, not the plant itself. A plant patent protects the plant and in most cases protects the plant against asexual reproduction. I also think it’s safe to say that all patented plants probably have names that are registered trademarks as well.
As I understand it, a plant patent is good for 20 years from the date of application and it does take some time for a plant patent to be issued, up to two years. A trademarked name is pretty much good forever and I truly don’t understand it completely. I’m not sure if it has to be renewed after so many years or not, but as far as I know the trademarked name is good for a very long time whereas the plant patent is 20 years from date of application which means that as a plant propagator you need to know two things for sure.
1. You cannot propagate a patented plant until the patent expires. Not even for yourself at home.
2. The trademarked name is off limits pretty much forever unless you are buying plants and the royalty has been paid.
All plants that are under patent can only be propagated by growers who have been granted a license to propagate that specific plant. This license is an agreement between the patent or trademark holder and the person that obtains the license. For the most the agreements states that for each plant propagated and sold the licensee will collect a royalty for each plants sold and also require buyers to buy plant tags that display the patent and trademark information so the end user who gets those plants knows the plants are protected.
Paying royalties is pretty painless and easy and for the most plants they are one dollar or less. I only have a few patented plants in my nursery because I don’t like to buy things that I cannot propagate. I get a much higher return on investment when I buy 500 plants that I can take cuttings from, then sell the original plants. If I do this correctly I never have to buy that plant again. I can just keep taking cuttings from the plants that I grew from cuttings.
That’s the beauty of this business. And to be quite frank, that’s why you see so many patented plants today. The big companies want us growers to have to buy our stock plants each year. That generates millions in royalties. That’s why I am such an advocate of keeping the plants that are in the public domain alive and well and in the market place.
Royalties are easy, getting a license to grow patented plants not so easy.
Becoming licensed to grow a patented plant usually requires a fee of one thousand dollars or more and in many cases they expect you to produce 10,000 or more of that particular plant each year. It’s just not something that makes sense for the smaller growers.
Other reasons to forget about propagating patented plants.
One of my all time favorite plants, I have many favorite plants, but one of them is the Lavender Twist Redbud Tree. Absolutely strikingly beautiful tree! Developed and patented by a friend of mine and long time nurseryman here in Madison, Ohio, Tim Brotzman. I grow the Lavender Twist here in my nursery in Perry, Ohio. This is a patented plant and the name is trademarked. I actually buy small trees from a grower in Oregon, I pay the royalty at the time of purchase and I also have to buy the tags to put on the trees.
None of that matters because this is a tree that I would never propagate myself even if I was allowed to for two reasons.
1. Tim learned early on that propagating the Lavender Twist here in cold Ohio was challenging to say the least. He was able to do it when he was in process of testing and developing the plant, but his results were less than spectacular. In the south where it’s warmer propagation of this plant is much easier. So even Tim, the holder of the patent, buys young trees from one of his licensees and grows them on in his nursery.
So with that said, it’s important to understand that nurseries do not propagate every plant they sell. In many cases they prefer to buy certain items from those who specialize in that kind of propagation. Many nurseries will not do any of their own budding or grafting. They’d prefer to buy plants already budded or grafted and actually grown for one, two or three years before they get them. That cuts their turn around time on growing and selling the plant by as much as 70%.
Where do new plants come from? Can I patent a plant and collect royalties?
For the most part, there are two ways that new plants are invented or discovered.
1. Chance seedlings. Many of the most beautiful plants that we love and enjoy today are the result of a “chance seedling”. A grower/nurseryman routinely sows tens of thousands of seedlings each year. Seedlings do not come true to the parent plant so there are always variations in a batch of seedlings.
Colorado Blue Spruce are routinely grown from seed. Millions of them each year are produced from seed. If you look across a bed of Blue Spruce seedlings you will see a variation of colors ranging from green to blue, and if you are really, really lucky a really bright blue one or two. Chances are you’ll see mostly green and some blue, none that are bright, bright blue.
Over the years a few growers, very, very few, have sown Blue Spruce seed and in one out of approximately 80,000 seeds sown, one time in their life, one of those seedlings just stands out among the rest just beaming with the brightest, bluest color you can imagine on an evergreen plant. That is the one in a million seedling! That is a new plant that has to be preserved, cared for, nurtured and eventually re-produced by means of Asexual Reproduction. Seeds from that beautiful tree will not produce a clone of that tree. The only way to get a true clone of any plant is via asexual reproduction, not seeds. That means, cuttings, budding, grafting or tissue culture.
That’s what we mean when we say chance seedlings. And the big question, the multimillion dollar question, is this; “Who is really responsible for producing that plant, and who does it truly belong to?
In reality, it’s a gift from nature. But . . . if it weren’t for the astute nurseryman who is dedicated to his craft it is entirely possible that the chance seedling would have never gotten the chance to be a tree in the first place, and even if it did happen in a completely natural setting who would know about this beautiful tree? Therefore, the common understanding is that the nurseryman is rewarded for doing this fine work and has the right to patent that tree as a means of compensation for bringing it to the world, and more importantly cloning and bringing it to market.
And that’s why we have a United States Patent System as do many other countries in the world. To give inventors incentive to work hard at bring us new inventions and in our world, new plants.
2. The second way that new plants are introduced to the world is via direct effort to cross pollinate different plants and do this over and over and over in a controlled environment until the desired result is achieved. And to be perfectly blunt, I have little to no first hand knowledge about exactly how this is done, how it works etc. But in this case, when deliberate effort is exerted and great expenses incurred to create new plants in a controlled environment, of course the “inventor” of said new plant should be entitled to patent protection for 20 years as the law allows.
Can I patent a chance seedling that I find growing in the woods?
To the best of my knowledge you cannot.
If I’ve comprehended this correctly in order for a plant to be eligible for a plant patented it has to be developed in a cultivated setting, as in a nursery. In other words, if the nurseryman who sows 80,000 seeds in two or three large seed beds in an effort to produce Blue Spruce Seedlings, that would be consider a cultivated environment. A truly unique plant developed in such a setting could be considered for a plant patent.
But if you are strolling through the woods in May and see a dogwood tree in full bloom, loaded with brilliant blue flowers, which does not currently exist that I know of, I don’t think it would be eligible for a patent because it was produced completely by chance in the wild, by nature. You could begin propagating it, but if you were to apply for a patent and were completely honest about how it came to be, I don’t think a patent would be issued. But then again, I don’t honestly know, that’s just how I interpreted what I read in my research of this subject.
But . . . you could give it a sexy name and trademark that name.
Plants with Trademarked Names that were never patented.
Huh? How can that be? Is that right, to collect a royalty on a plant that truly was a gift from nature?
The plant was a gift from nature, but if somebody doesn’t put forth a great deal of effort in propagating and producing thousands of said plant then going to the top of the mountain (buying tens of thousands of dollars in advertising space in trade journals and gardening magazines) and screaming to the world about this new and exciting dogwood with blue flowers, that one lone tree will never be seen by anybody except the one person who happened upon it in the woods.
Therefore, the person or big company, that brings this non patented plant to market, needs some form of guarantee of income in order to put forth that effort and make the investment in letting the world know about this plant. And they have a big job ahead of them because the plant is not patented, therefore it can be grown by others, so they have to work hard and fast to turn that sexy name into a brand. That’s no easy task and it truly requires deep pockets.
Make any sense?
White Fountain Weeping Cherry or Snow Fountains® Weeping Cherry?
Throughout this post I’ve been teasing you with photos of White Weeping Cherry trees. Look at those last two photos. Is that not an awesome tree with that twisted and contorted stem?
So which is it? Are these White Fountain or Snow Fountains® Weeping Cherry?
I don’t know. White Fountain Weeping Cherry has been around for years and I don’t know where or how the plant originated. I think it was introduced by Wayside Gardens but I don’t know for sure. To the best of my knowledge it was never patented. But as I understand it another grower decided this plant was worthy of investment and probably under marketed so the name Snow Fountains® Weeping Cherry was registered as a trademarked name and a great deal of effort and expense went into making this plant popular and in demand across the United States and possibly around the world. Snow Fountains® truly became a brand and household name around the industry.
You can easily find this plant sold everywhere as Snow Fountains® Weeping Cherry. There are some growers who still grow it under the name of White Fountain, but not nearly as many.
The interesting thing about White Fountain Weeping Cherry is that it can be rooted from cuttings. It’s a bit tricky, but it can be done and I do them With this System like I do all of my cuttings. This is a weeping tree so like most weeping trees grown on their own roots (not grafted or budded) the only thing they know how to do is weep so if you don’t train them to grow upright and stake them, they will pretty much just grow across the top of the ground, which is interesting if you let them hang over a brick wall.
Looking at the last two photos that I posted on this page that tree was grown and trained by a friend of mine in his nursery with that crazy crooked stem. He trains them that way intentionally. So I’m driving down the road and see the tree in somebody’s yard. I stop and ask if I can take pictures and use them in this post, that’s how I learned who originally trained the tree with the crazy crooked stem.
The Colored Pot Debacle.
This is what puts patented plants out of reach for the small grower. It started out that if you want to grow and sell a patented plant you could just buy liners (a small plant, larger and older than a rooted cutting) or rooted cuttings, pay the royalty at the time of purchase, then grow out the plant and sell it at a profit. You can’t propagate from those plants but you can grow and resell them at nice profit as I do with the Lavender Twist Redbud Trees.
Then the holders of these patents decided that they really want to drive home their brand names so they now require you to not only buy the plants, pay the royalty on each plant, but they also make you, at that time, buy the branded pots from them.
This is a game changer for small growers.
Small growers cannot tie up that much money in a plant that they can’t sell for two or three years. This is really making it difficult for a small grower to offer these branded plants in their line up. Trust me on this, a lot of growers, even pretty big growers, are not in love with this “colored pot debacle”. But there’s another side of this as far as I’m concerned.
For years and years we saw new patented plant introductions, a few each year. Truly unique, truly interesting plants that were worthy of a patent. Then all of a sudden, just about every plant being offered by certain big growers who supply the industry with liners are either patented or carry a registered trademark. New introductions of plants that have been around for years and years. All of sudden the variety that we’ve been growing and selling for years is no good? We now have to grow and sell the branded plant in the colored pot?
I say we don’t.
I say we have an obligation as small growers to keep producing the older varieties that have been around for years and sell them at prices that gardeners are delighted to pay. I teach my backyard growers a system of growing and selling plants that allows us to routinely sell plants for as little as $4.97 each and still make an incredible profit per plant. We can’t do this with branded plants in colored pots.
I say we let the big kids on the block have the colored plant business. They can grow them, pay the fees, buy the “colored” pots and the tags, then push them onto the retail market at crazy high prices. We , as small growers, will unearth and revive all of these beautiful plants that are being kicked to the curb! In many cases these older varieties are superior, but we are being lead to believe differently. Don’t buy it. These older varieties served the industry well until all of a sudden somebody got the idea that plants had to be sold under a brand name.
Fight back my friends, this is a battle worth fighting for!
Last but not least, something about the United States Patent System that I did not know.
I was always under the impression that when a new product, say a prescription drug, was patented and introduced to the market that the “so called recipe” to make this drug was top secret stuff and that other companies, competing companies, would reverse engineer that drug in an effort to find out it’s formula so when the patent expires they can rush to market with a generic version of the original.
But in talking with a patent attorney he told me that’s not the case at all. According to him, as I understood it, remember, I’m just a dirt farmer in bib overalls, he said that when applying for the patent the company has to disclose the recipe (so called secret formula) and in return they are granted a patent that gives them 17 to 20 years (I think drugs are different than plants) to crank out their new release like crazy, make as much profit as they can and when the patent expires others are encouraged to start producing generic versions.
In other words, they are pretty much telling the world in advance how to make the knock off versions in exchange for X number of years of patent protection so they can recoup the investment they have in the product to date and earn a nice profit before the flood gates are opened.
So how about Plant Patents?
As I understand it, this is not legal advice, the plant patent is good for 20 years from the date of application. Once the patent expires it is my understanding that the plant itself is no longer protected but the trademarked name is.
Don’t ask me what you are allowed to do or not allowed to do. I’ve presented this information as clearly as I know how but I am not going to give you permission to do grow anything. Only you can decide that.
You can search the plant patent database and I will put a link here as soon as I find it. But it’s not an easy site to use therefore I never use it because it often doesn’t return what I’m looking for, even though I know it’s there. I’m sure it’s “operator error”. What I do is buy plants from large growers that I know and trust. They are really good about disclosing what is patented and what is not and I will often use google to check that information against other larger growers that I know and trust.
On this site you will find a list of thousands of plants that are patented and when the patent was issued as well as a ton of other information about patents in general.
I have presented this information as clearly as I understand it. I know there are experts out there who know more about this process than I do and I welcome their comments here.
We Need Your Help in Saving and Reeving the Beautiful Plants that have Been Kicked to the Curb by our Industry! It’s the right thing to do.
Questions or comments? Post’em below!