Is there any money in patented berry plants? How does the gardening community feel about patents?

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.

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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.

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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!).

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Ill look into this point further, thank you for the help!

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?

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Patents expire.

Thank you very much for this, it will definitely make me reconsider how I want to go about doing this!

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.

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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.

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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.

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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.

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Considerably better odds than playing lotteries…but still not real good.