Hey. I was wondering if anyone knows how to get a new fruit tree variety patented. I have 3 apples and one peach that are completely new and want to get them their own name and status.
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You would need to make a patent application and will probably need a patent attorney to help fill it out. So there is a fair amount of expense. People take out patents on plants to prevent others from propagating the plant and then propagate the plant (or license propagation rights) to recover their costs. In many cases they don’t recover the costs of the initial patent itself.
Are you wanting to put them into commercial production? That’s the main reason to patent them. You can name them without a patent. You also could trademark the name which is probably cheaper than a patent. Again that doesn’t make much sense unless you want to sell plants.
So what are you’re goals? Why are you wanting to pursue a patent?
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Have several varities i didn’t patent which anyone is welcome to grow or graft. This is one of the better ones Clark's Crabapple . The @39thparallel orchard makes this apple variety pretty popular because of his huge online following. He told me he sells a lot of them. When i gave him the scions the only goal was to get the apple out there. I’m glad this apple will be there for everyone to enjoy. The best part is i suspect it will outlast us all and likely be used in future breeding.
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I’ve found that many people who ask about patenting have been misled to believe it’s just a normal part of naming a variety. It is not.
At the very most basic level a plant must first exist in duplicate to be a named cultivar. If it is still just a single specimen that hasn’t been propagated then it can not yet be a cultivar. Once it is propagated to make more the chosen name must be published. Technically the published name must be in print and can be in any sort of horticulture related magazine, journal, nursery catalogue, etc. The international guidelines are a little behind the times and do not yet consider cultivar names valid if only published online, but I think that will have to change as more and more publications become digital only.
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Many people believe patents protect their creation. In my childhood we had a very good pumpkin that grew wild all over the field. Not realizing the value of that variety since i was a child the pumpkin is now lost forever. None of you will ever experience those delicious pies or see a vine producing sometimes a dozen very large pumpkins. Insects never bothered it and it self seeded every year. Losing a variety like that was an eye opener for me. The next generation will get to enjoy my apples and other crosses. I learned from my mistake.
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Patents can definitely hurt the longevity of a variety. Because only one entity controls propagation rights (usually a mega nursery who has purchased the rights from the developer) it can simply become unavailable to the public if they don’t consider it to be selling enough. They can simply discontinue it long before the patent expires which results in it being completely unavailable as no other nursery can propagate it to make it available. By the time the patent finally expires it’s all just a matter of luck if anyone still has access to mother plants to get the variety re-introduced to the public. I have been struggling to find one such plant for a couple years now. It’s a species that propagates very easily through division, but just doesn’t have high enough demand to justify propagation by mega nurseries so it has functionally ceased to exist here…
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Ok. What about a trademark? Or is that still expensive and bad for the variety? Because I have 3 varieties of apples that I’ve cultivated that are only mine and I’ve sold many cuttings and grafted trees with my own name attached.
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Don’t misunderstand me, i’m saying what i did not that you should do the same. My fear was of the variety being lost or that someone might not be able to afford it. About your first question this will help Plant Variety Protection | Agricultural Marketing Service
You didn’t answer the question of what you are trying to accomplish. Why do you think you want or need a patent or trademark?
Ok. Thank you!
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I just wanted it to be on the registry because I’m selling my own 3 varieties as my own.
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Trademark is for marketing purposes ONLY and is not the same as a cultivar name. In fact if you use the trademark name as the cultivar name then it will invalidate your trademark.
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As a side note, if you’ve already been distributing it then it is in the public domain and not patentable anyways.
If you’re already propagating and distributing them then just make sure you are clearly labeling everything you distribute to include the names you have chosen. That way everything you distribute will have consistency and not result in the same clones circulating under multiple names. I would also HIGHLY recommend writing a description for each variety and at least publishing it online (a blog would work) so that there is an easily searchable reference for your varieties so people can know what they are and also be able to compare theirs against the description to ensure what they have is true to type. In the absense of a solid written description it can be easier for multiple different varieties to start circulating under the same names.
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I’ve found websites like Orange Pippin to be very good for verifying that your name idea doesn’t already exist as a name for another apple. They have a very extensive list of varieties.
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So, how do I get the cultivar name to be set in stone and have no one steal my varieties?
Ok. I will definitely make a post about my apple varieties.
I’d argue that the social route, rather than the legal route, is the way to go here. Make sure you publicize your varieties however you can in many places. Write a good blog post, a post on the forum here here, etc, and perhaps see if any nurseries would like to start distributing your apple, most offer a short description in their catalogues about each variety of plant they sell, which often include the cultivar’s origins (where you would undoubtedly be given credit). Since you seem to be concerned with being credited for your work, rather than monetary gain (no shame in that), I think this would be my approach.
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There’s no way to 100% ensure no one will “steal” your varieties if by that you mean “assign their own names to them”. If you just pick memorable names and focus on consistency you will discourage people from re-naming them because it’ll be easier to use the name people already know instead of trying to reintroduce the varieties all over again under new names. You must think they are pretty extraordinary varieties if you think there is a high risk of someone trying to re-brand them. Of course anyone can assign a trademark name to any variety for marketing purposes regardless of who originated it, but as mentioned before that is not the same as a cultivar name.
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I will say that based on my observations the most common reason already named plant cultivars get assigned new names by different people is because the original names get lost and the varietal descriptions are not available to match them to for deciding if they are an existing cultivar so these “found” trees simply get given a new name to be passed along with. If your cultivars are very unique a good written description can help them get re-identified as the original names if this ever happens.
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