I’ve long suspected that plant patents get granted in the US without the patent office actually even reviewing the material to verify the requests truly warrant patent status or that the claims made in the patent are valid. The following quote is a major typo I found while reading a plant patent today. It’s pretty hard to miss and a big read flag that no one even took a critical look at it before marking it “approved.”
BACKGROUND OF THE INVENTION
The present invention relates to a new and distinct Carex plant, botanically known as Carex hybrida and hereinafter referred to by the name ‘ET CRX01’.
The new Helleborus plant is a product of a planned breeding program conducted by the Inventors in Boijl, The Netherlands. The objective of the breeding program was to create new Carex plants with an elegant plant habit and variegated leaves.
The new Carex plant originated from a cross-pollination conducted by the Inventors in Boijl, The Netherlands in 2010 of a proprietary selection of Carex hybrida identified as code number 520, as the female, or seed, parent, not patented, with a proprietary selection of Carex hybrida identified as code number 6-90, as the male, or pollen, parent, not patented. The new Carex plant was discovered and selected by the Inventors as a single plant from within the progeny of the stated cross-pollination grown in a controlled greenhouse environment in Boijl, The Netherlands in January, 2011.
Asexual reproduction of the new Carex plant by divisions in a controlled greenhouse environment in Boijl, The Netherlands since January, 2011 has shown that the unique features of this new Carex plant are stable and reproduced true to type in successive generations. USPP26199P2 - Carex plant named ‘ET CRX01’ - Google Patents
Let me know if you think you would have caught this typo if you had been the one reviewing the patent request.
With the patent offices lax review process I think more people should question the validity of claims made in plant patents and not just assume that since it’s written in a patent, it must have undergone some verification process. Case in point, some of the claimed “hybrid” plants which show no trace of one of the supposed parent species (think some of the alleged “cherry” x plum hybrids as well as Rudbeckia x Echinacea hybrids).
Personally, I am inclined to believe the patent office simply lacks any staff with enough horticultural knowledge to even catch red flags in plant patent requests.
Plant patents have a low standard of proof, because they are only intended to offer the most minimal of protections to cultivars. They aren’t hard to get and are not supposed to be. If someone is really trying to protect a cultivar aggressively these days, often it will have a utility patent in addition to a plant patent. Utility patents cost more, have a higher burden of proof than plant patents, have maintenance fees instead of a one time fee like a plant patent, and also restrict the cultivars use in breeding, unlike a plant patent. A new cultivar can also be locked up aggressively with exclusive licensing agreements as is done with club apples, many strawberry cultivars, & many of the newer table grapes varieties. Theoretically the owners of the cultivar can retain exclusive control of a variety indefinitely when doing it that way with or without a patent.
Welcome to the forum @SethDoty. You make good points. I don’t bring up this issue to make a statement about how much protection a patent offers to the holder though. Rather, it’s because I’ve seen patents used as “evidence” for the validity of the claims made therewithin. It seems that many people are under the impression that if a patent request was approved, then it must have gone through a rigorous validation process to insure the claims made within were verifiable. I want to raise awareness that the publishing of a claim in a patent doesn’t equate to proof of said claim.
I’m curious to what the typo is. I didn’t find it. As far as I know here in the Netherlands and in Europe you can not get breeders rights (which is a bit different from a patent) without having a certified organization test your newfound plants for one or more seasons and verifying your claims of it being Distinctive, Uniform and Stable. The (DUS-test).
Since it is not the patent office itself that does the tests, but relies on other organizations I can imagine a typo snuck in here or there.
In this case, where an American plant patent was sought for a plant that was bred in the Netherlands, I have no idea wether the American patent office just requires and accepts the DUS tests of the European organizations or wether they repeat these tests in the States with new material (these tests are expensive and time consuming) I can imagine that they have some legal procedure where they give an American patent based on established European tests and paperwork.
Here’s the typo. They basically just copy/pasted a previous patent for a Helleborus and then made basic edits to make it about the Carex. This is already obvious if you read through a lot of them. Lots of copy/pasting without much real thought going into it, but in this case they forgot to update one of the plant names from the previous version (Helleborus to Carex).
A plant can be distinct, uniform and stable, but still have an inaccurate description of what it is. Example: The alleged, but unsubstantiated claims of hybrid status mentioned previously in the thread. I recall reading a patent on an alleged cherry x plum hybrid in which they claimed it was the result of a plum pollinated by a cherry, the offspring of which was subsequently pollinated again by a cherry to produce the final selection which was patented. If that claim were true, the tree would be approximately 75% cherry (give or take), but in the field, the tree looks like a plum tree in all aspects, and the fruit appears to be a plum in all aspects (plums vary a lot in flavor so people are willing to suspend disbelief and accept that its flavor is somehow attributable to cherry ancestry). A serious review of their claim should be critical and argue that despite their pollinations with cherry, the resulting progeny simply don’t appear to be the result of a successful cross, but rather more likely the result of accidental plum x plum pollination resulting from the plums rejecting the pollen of the cherry and only setting fruit from accidental pollination from a compatible plum.
I see your point but that is not what they test for. DNA testing has only been available for a decade and plant breeders rights are much older.
The procedure does not and cannot verify reliably the claims of the breeder, but welcomes any additional description on how the plant was obtained. In this they assume no ill will of the breeder and it is regular practice to document the pollinations that you made and register where you have obtained the plant material of the parents. These claims are not investigated or independently verified, they are just written down as extra information of the breeder as far as I know.
So it is very probable that for lot of plants it will turn out that these registered pollinations are actually not the real parents. Anything can happen when hand pollinating and making crosses to find new plants. Wind, insects, brushes may leave a tiny bit of other pollen on the stigma.
I regard these stories not as actual claims but as written documentation of what the breeder thinks that he did.
The actual tests are only done to establish Distinct, Uniform and Stable new varieties, not how they were produced. At least that is how I understand it.
You’re right that I was referring to the “Helleborus.” Carex and Helleborus don’t have anything to do with each other. I posted this to highlight an example of how patents can get approved without much in the way of vetting.