Landscape Architect Articles

Why Patented Plants Are Worth the Cost01-06-17 | Department

Why Patented Plants Are Worth the Cost
Plant patents are designed to encourage the entrepreneurial spirit and reward breeders and cultivators for their long hours and efforts.

By Nicholas Staddon, ''The Plantsman,'' Consultant for Village Nurseries Wholesale, Orange, Calif.

Sun Parasol???(R)???AE???? Giant White Mandevillea PP
*Photo: Suntory???(R)???AE???? Flowers Ltd.*

If you want to design a landscape that's unique, dramatic and adds value to the building or property it frames, chances are many of the plants you specify will be patented.

Over the past 50 years there's been an explosion of patented plants as breeders worldwide strive to meet new and challenging design demands. In the U.S. alone there are over 24,000-patented plants, and that number continues to increase. These exclusive plants are:

• More colorful and longer blooming, or offer intriguing textures.
• Narrow or columnar for narrow spaces.
• More compact to work well in confined area.
• More disease resistant.
• Regionally appropriate.

Emerald Colonnade???(R)???AE???? Holly PP
*Photo: Monrovia Nursery Co.*

What Is a Patented Plant?
Plant patents are designed to encourage the entrepreneurial spirit and reward breeders and cultivators for their long hours and efforts. The U.S. Patent and Trademark Office (USPTO) grants a plant patent to a breeder "who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated or a plant found in an uncultivated state." A U.S. patent lasts for 20 years, but is not valid in foreign countries. Breeders can obtain foreign patents known as "plant breeders rights."

Trials and Tribulations of Patenting a Unique Plant
When you purchase a patented plant, you're paying for the years of labor required to bring it to market. As a rule, breeders tend to concentrate on one genus at a time, becoming genuine experts in their field. For example, a breeder may specialize in Mandevillas because he knows he can improve its color, blooming ability, mature size or disease resistance.

As a patented plant must be unique, breeding begins with research. Breeders often work with a network of experts to determine if a similar plant already exists. Next comes the arduous trial and evaluation work to ensure the new plant remains stable from one generation to the next. Does it maintain its unique size or brilliant color? In what zones will it flourish and in what seasons? Will growth be self-contained or will the plant propagate wildly and pose the potential danger of becoming an invasive species or variety?

This trialing period takes 3-5 years for perennials, 5-8 years for ornamentals and shrubs, and 11-15 years or longer for trees.

Southern Moon???(R)???AE???? Yedda Hawthorn PP
*Photo courtesy of Photo: Monrovia Nursery Co.*

Patenting Plants: Not For the Faint of Heart
I work with two patent agents. I write the initial portions of the patent, and then turn the materials over to them for the detail work. From the date the patent is submitted to the USPTO, the process takes about two years. Creating a patented plant takes years of careful breeding and cultivation, then additional years of trialing and evaluation, plus the patenting process time.

Flower Carpet???(R)???AE???? Scarlet
*Photo: Tesselaar Pty Ltd.*

Protecting Patented Plants against Illegal Propagation
Once breeders receive a patent, they can assign the patent rights to growers, who in turn pay a royalty on every plant sold. They can also license growers to produce the plants and pay a royalty for every plant sold. Normally royalties are paid for the life of the patent.

At Village Nurseries we license patented plants from companies like Monrovia Nursery, Anthony Tesselaar International (creator of the Flower Carpet???(R)???AE???? brand), the Sunset Western Garden • Collection and PlantHaven???(R)???AE????. All licensed plants must be of consistent quality and must remain true in name and nature.

When a patented plant goes to market it must be labeled with its full botanical name, its PP (plant patent) or PPAF (plant patent applied for) number, plus a "plant propagation is prohibited except under license" clause. Owners of patented plants often hire a company such as Plant Watch, whose full-time job is to visit nurseries to ensure no one is propagating patented plants illegally.

Festival• Burgundy Cordyline PP
*Photo: Tesselaar Plants*

Meet the Breeders
Some large companies have their own plant divisions. In 2003, Suntory???(R)???AE???? Flowers Ltd. of Japan introduced a new line of Mandevillas under the Sun Parasol???(R)???AE???? name that was a marked improvement over their predecessors. There are smaller breeding companies such as Terra Nova???(R)???AE???? Nurseries that are noted for producing numerous international winners like their Heuchera varieties.

Dr. John Ruter, who teaches horticulture at the University of Georgia, has patented many plants over the years. The university licenses growers to produce his creations and bring them to market.

Then there are the "plant explorers," people like Dan Hinkley who scour the globe looking for new plants. I've developed some very successful relationships with gardeners and experienced homeowners who have developed an eye for new seedlings or sports (plant features developed without human intervention or cross-pollination by insects). After they alert me of their discoveries we initiate trialing and evaluation. If the plant proves to be uniquely different or improved, the patenting process can begin.

As seen in LASN magazine, January 2017.