I traveled to Europe many years ago. While out there I learned about a very unique berry bush that is extremely cold hardy (down to zone 3 or 4), zero insect pest pressure (at least in Europe), can produce 15-20 lbs of fruit per season, is self fertile and has a very good taste. Its certainly no top tier berry like raspberries but easily as good as honeyberries and gooseberries. I looked into it and found that there is no legal way to bring in cuttings of the bush to the US. This species of plant technically exists in America and I’ve gathered multiple samples of it I could from various sources but they are very much the “wild cousin” of the versions in Europe aka way more sour, less sweet, poor production etc.
Since then I have been in contact with a breeder who has been improving the species for the past 40 years. He agreed to get the certifications necessary to mail me a large quantity of seeds. I also asked him if he minded me potentially patenting the plant in the US and he had no problem with me doing so and was touched that someone was willing to put in the work to bring them out here.
I will be putting in a large amount of labor, time and land to grow enough seedlings that I can get a variety (or hopefully multiple varieties) that could potentially be as good as the ones I found in Europe. My question is, aside from being a passion project, is there actually any money in patenting the plant and then having nurseries sell it with a small licensing fee (not sure if thats the correct term for it). In addition, how does the garden community feel about patents? I’m definitely not in this for the money but it would be nice to recuperate all the money I will be putting in.
I certainly would never speak for “the gardening community,” but my main comment would be that there are opposing considerations between:
(1) do you want the cultivars you create to be able to spread as widely as possible so that they become well-known?
and
(2) do you want to ensure that if you do breed a “winner” that you are the only person with a right to profit from that (at least for 20 years)?
If you want the community to get excited about your varieties then you probably should not be prohibiting people from sending each other cuttings. That’s how excitement usually builds for new varieties from obscure breeders. But, if you don’t patent them then anyone else could start selling clones later without paying you anything.
Another thing to consider is if you don’t already have established relationships with large nurseries to distribute or propagate your plants, you may find it hard to convince them if they have to worry about licensing fees and contracts.
If you decide not to patent them, you can still publish cultivar names and descriptions that point to you, and then people may seek out other cultivars you release later down the line, even if those are patented.
Your insight is appreciated! If I were just to release it, could some nursery or individual out there theoretically just grab a cutting early on and then patent it themselves?
This is not legal advice! But, once you publish a cultivar name and it has been propagated then it is in the public domain and cannot be patented by anyone (yourself included!).
A friend is a plant breeder and has many plant patents. Does he make money? Some, but not an easy task. First, getting a plant patent lawyer is not cheap. Then getting the patent means nothing. So often my friend has found nurseries selling one of his introduced plant selections that he has a patent on and they are not licensed to propagate it. Then he has to call them and inform them of the issue. Sad to say there is no plant patent police out there to do that job for you.
Fast growing plants are not bad but patenting trees are the worst! Plant patents run out after so many years. By the time a new tree introduction gets around the country and finally becomes popular is when the patent has run out or is close to running out.
Some large nurseries now take out a patent and a trademarked name on a plant. Very expensive to do. Others avoid the patent fees by having the plant introduced by a large nursery/company who then splits part of the royalty fees collected with the original breeder or plant selector. Sort of a “joint introduction”.
I don’t want to state that money is not made on getting a patent on a plant, but the high costs to do so and the royalty fees collected do not always amount to big dollar amounts. The biggest headache is marketing the plant afterwards. You need to get a lot of royalty fees back to start making a profit.
Maybe berry plants would work differently as nobody would plant just one. 50 cent royalty fee per plant?
I’m not worried about long term investments here. I’d just like to make enough to pay me back for my time and labor. I’m not looking to be the next berry tycoon.
In order to patent a plant it must not only be distinct in some way, but you must also be the originator of it; either because you selectively bred it, or discovered a unique specimen growin on land you own. You can not patent something that did not originate from you.
Makes sense, thank you for the input! Thats essentially what I figured but given that much of this would be word of mouth, I could potentially foresee somebody claiming they are somehow the originator and then setting up a patent.
If you’ve already gotten your plant publicized (even if just via a forum like this) then anyone trying to patent it later (which is extremely unlikely to happen) would not have any ground to stand on.
Not to mention, if someone is going to lie in their own patent application (pretending an existing variety is a new one they developed), then there’s nothing stopping them from doing the same thing with a patented variety.
My (non attorney) opinion would be that you could patent the results of your seedlings trial, since you would be the “discoverer” of any superior seedling and all seedlings are their own unique cultivar.
Personally as a gardener who enjoys propagating plants, I don’t like patents. Many home gardeners will just ignore the patent as long as it’s for personal use or to share with friends since you’re unlikely to be caught unless you advertise for sale. That said I tend to avoid patented varieties unless the patent has ran out. I could pay the 40 cent royalties, but would the headache of licensing and sending in royalties be worth it for small scale propagation? I doubt it. That’s one issue with patents. No matter how cheap your royalty, it’s still a barrier to entry for the little growers and home gardeners.
All that said I definitely understand why the patents exist and why you would use them. They incentivize folks to develop and market new varieties, which eventually become public domain. The ones I actually resent more are those who trademark a variety. Technically you can propagate all you want and sell them…as long as you use a different name. To me this just leads to confusion as the same variety ends up available under different brand names. Also trademarks don’t generally expire, so the confusion is permanent.
Long story short, if you want to see quicker adoption and faster spread, leave it public domain. If you want to try to get your money back and don’t mind having to work a little harder to popularize it, patent it. As patent owner you’d control royalty setups, so you could always either waive the fees or offer a low token royalty for x years to entice nurseries to adopt it. Probably would need to proactively reach out to the smaller ones. I’d also consider sending free sample plants to folks with influence. Do a YouTube search for garden, permaculture, homesteading, and self sufficiency and send a free sample to the top few results in each search. Maybe consider a few of the heavyweights on this forum too. Especially if you can get folks in different zones.
If you want to create confusion and resentment, then just trademark it lol.
As a retired patent lawyer, I have a few thoughts that some may find helpful.
First, you can only patent what is “new, useful, and nonobvious.” The key in plant patents being “new.” You can’t patent something that is already in the public domain (e.g. described in a publication or being sold).
Second, a patent can only be filed by the inventor (except in rare cases).
Third, an inventor filing a patent application must submit an oath swearing that they are the inventor and, to the best of their knowledge, the subject matter they are seeking to patent is “new.” Violating that oath invalidates the patent.
Fourth, patents are unpopular in many quarters, in part because they are misunderstood. The purpose of patents is only partly to encourage innovation. Equally important is the desire to encourage public disclosure of inventions. Sometimes inventions are not patented and are kept as trade secrets. The patent system encourages disclosure (a patent must teach how to practice the invention) so that others can use the invention after the patent term expires. This concept applies more to “utility” patents (e.g. chemicals/ drugs, electronics, mechanical devices) than plant patents. But even in plant patents, information such as genetic ancestry is useful to the public.
Fifth, the patent application process can be expensive. But applying for plant patents seems straightforward. I think it could be done by an individual without the assistance of a patent lawyer. There are fees associated with filing patent applications, but they are greatly reduced for individuals compared to corporations.
Finally, comments in this thread suggest that a 20-year patent term may be inadequate to recover investments in certain types of plants. That is an interesting thought. Plant patents are so different from other patents that I could see a rationale for extending the term of plant patents. There are other fields where industries argue that a 20 year term is too short, such as pharmaceuticals where it takes many years to obtain FDA approval—thus, effectively shortening the effective patent term. In the case of pharmaceuticals, however, there is provision to extend patent term based on regulatory delay. Perhaps some similar legislation could be passed for plant patents.
A few years ago, a change was made so that you could also get plant variety protection for some woody plants like trees and vines. Formerly, you could only get pvp for things like potatoes. PVP gives 25 years of protection instead of 20 years the plant patent gives you. That’s one other option to look at besides plant patents.
Practically speaking, in fruit crops, the trend seems to be more for plant patents to become less and less important and for companies to protect their varieties by keeping them privately owned and “renting” the use of the varieties to cooperating farmers via contract law instead of relying on plant patents as the primary form of cultivar protection. With that method, the company can control the material indefinitely and it never becomes public domain. They can also prevent competitors from using the material in breeding and thus choke off & reduce competition. Not good for the consumer or the future of plant breeding long term, but in the short term it can make companies that own some successful cultivars a boatload of money.
Yes! I am actually quite excited about the project. I currently have approximately 3000 seeds from the original breeder’s most interesting varieties, with plans to import more. It’s a bit difficult to fine-tune the germination process as they easily mold but require a very long cold stratification period.
My first trial only successfully germinated at about a 10% rate, but the good news is I grew some of them indoors for about 10 months, so some have reached 5 feet in height already! I’m not sure, given the limited information online about them, but the largest bushes (2-3 of them) look like they may have some fruit buds (though I am probably being way too optimistic). I’ll make sure to report the results of the “fruit buds” in the spring.
I’ve invested quite a bit into a sterile technique used for some difficult-to-germinate seeds and currently have a new trial using this technique in hopes of bumping up the germination rate. The new batch has only been cold stratifying for a couple of weeks, so it will be a long while before I know the results. I can’t see the seeds in the new setup without opening the containers and potentially contaminating them, so I have no idea how they’re doing.
Early positive observations I’ve noted so far: Practically zero pest pressure. On two of the six plants that I grew outside, there were a couple of minuscule bites taken out of a few leaves, but otherwise no issues. I also grew some indoors alongside rooted mulberry and autumn olive cuttings, which got decimated by spider mites (unfortunately very common in indoor grows due to lack of predators). While the European berry plants did have some spider mites, it was substantially less in comparison. They seem to grow fairly quickly (although I really babied these plants). So far, they are handling our winters without a hiccup. I am growing them outside in 5-gallon grow bags. They have sustained zero damage this winter, while some of my “zone 5 hardy” blueberries have already taken a bit of damage under identical conditions. They root very easily, although this has only been tested on two plants.
Early negative observations so far: They really like to produce new shoots (some more than others) and while that would appear to be a good thing, a couple of them produce so many shoots that each individual shoot stays quite thin. I have already started playing around with pruning to see how it affects their growth. The seeds are a pain in the butt to germinate. Not much else to say here yet, but I am still very, very early in this journey and likely will discover other issues.
Sorry for the long post, I am very excited about all of this and hope I can bring some tasty varieties to the gardening community over the coming years if it all works out!