Human Flower Project

Plant Patents: Potted Gold?


A variegated redbud won’t make Allen Bush a mint, but if you enjoy growing ‘Alley Cat,’ please buy him a beer.


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Even Le Bron James can’t pass along a patented plant

Photo: Baby Wall Decorations

By Allen Bush

My friend Mike Hayman phoned the day after “The Decision” —the LeBron James’s televised public relations disaster. LeBron and his handlers had spent the previous two weeks shopping pro basketball teams for a winning deal. Now Hayman wanted my decision. Did I want to patent Cercis candadenis ‘Alley Cat’: a variegated redbud that popped-up as a chance seedling in my back garden down near the alley?  (Unless Tinker Bell sprinkled pixie dust, I can only guess that seed must have blown in on the fair winds to my little spit of land.)

“Are we talking LeBron money?” I asked Hayman. Could this be my ticket to fortune? I wondered. Mike laughed: “No, this looks like the amateur ranks.” (At least he didn’t say Bush League!) 

imageMike Hayman (Louisville’s Johnny Appleseed) with Platanus x acerifolia ‘Yarwood’

Photo: Allen Bush

Mike had gathered scion wood from ‘Alley Cat’ last summer and taken it to ace propagator Harald Neubauer, who budded a few onto seedling redbud understock at Hidden Hollow, his nursery near Belvidere, Tennessee. Neubauer liked the look of the variegated pattern this early summer and wanted to propagate some more. But he acknowledged that Cercis ‘Alley Cat’ might sell only a couple of hundred plants each year, not hundreds of thousands.

Variegated plants aren’t for everyone. I could do the math. The cost of a patent application in the U.S. is estimated between $2500 – $5000;  $3200 – $4800 for European protection and $600 in Japan. Projected royalty of $1.00 per plant x 500 plants sold per year… Looks like I’m going to have to scratch a few more lottery cards to find a winner. There wasn’t any point in filing a patent application. I gave Neubauer permission to do as he wished with ‘Alley Cat.’

As for Le Bron’s Decision, I was one of 9.95 million television viewers on July 8th watching the National Basketball Association’s Most Valuable Player announce on ESPN’s pathetic infomercial, “I’m taking my talents to South Beach.”

Delivered with barely a trace of emotion, LeBron’s remarks were overwhelmingly interpreted as “I’m packing my bags, leaving the Cleveland Cavaliers, the dead-end rust belt, and going to play basketball where there are lots of other beautiful rich people.”

The LeBron brand name got savaged. I hope he fired his marketing people. The move to the Miami Heat, LeBron said, was not about the money. (He took a pay cut.) He wants to win an NBA title.  And LeBron might get a championship ring playing alongside Dwayne Wade and Chris Bosh, but he won’t have a lot of fans north of Dade County, Florida, cheering him on. The folks in Ohio felt abandoned. The deep affection for the Akron, Ohio, native disappeared in no time.

Mike Hayman and I are gardening buddies.  We swap plants—for free.  Besides being a long-time photographer for the Courier-Journal, Hayman is Louisville, Kentucky’s Johnny Appleseed of neighborhood tree plantings. In a little more than twenty years, he has helped turn his Seneca Gardens neighborhood into a community arboretum.

What’s more remarkable is that when he started this effort, he didn’t know the difference between an oak and a maple. An isolated 1987 summer microburst took out 100 mature shade trees in his part of town. By the spring of 2008 Hayman had decided to reforest door to door. Now he can tell the difference between a Japanese maple (Acer rufinerve ‘Winter Gold’ is a favorite) and a Kentucky coffee tree. He has helped plant over 1,000 trees, many of them quite rare,  for the 300 residents of Seneca Gardens. He’s now spreading his net wider, proselytizing and planting in other neighborhoods.

imageBrunnera ‘Jack Frost’

Photo: Allen Bush

There are lots of gardeners who love the gardening game, but who among them wouldn’t want a lucrative royalty deal?  It’s not going to be a LeBron payday but it could be a tidy nest egg. Perhaps it’s the American dream – winning the lottery, starring in your own reality TV show, dancing with the stars?  But the gardening craft is seldom a road to riches. You won’t see many nursery and greenhouse professionals driving nice German cars. (12.3% of all growers have “exited the industry” within last two years according to Charlie Hall, Texas A&M economist.) Those in the pro ranks are, on the whole, a generous group of gentle souls who spend long days quietly sticking cuttings, sowing seeds and potting-up new plants. They don’t make a lot of money. But many can spot something new and different among plants. Once in awhile the ship comes in after years of long, arduous breeding work; sometimes it is heaven sent as a chance seedling like Gaillardia aristata ‘Fanfare’, or occurs as an odd mutation on an existing plant (example: Brunnera macrophylla ‘Jack Frost’ introduced by Walters Garden, Zeeland, Michigan.)  Cercis  ‘Alley Cat’ won’t be a lottery winner like Brunnera ‘Jack Frost’ or Gaillardia ‘Fanfare,’ but all were dumb luck – the genetic sort.

Cercis canadensis ‘Alley Cat’, when it is released in the fall of 2011, will belong to the public domain. Anyone can propagate my redbud. (Listen to me…already starting to claim ownership of this freak of nature!)  You can propagate the hell out of it and don’t have to pay me a nickel. But how about a cold beer next time I see you?

imageOregon nurseryman Sean Hogan and Brodie

Photo: Courtesy of Nathan Limprecht

Sean Hogan, owner of Cistus Nursery, spoke at Perennial Plant Associations’ annual symposium last month in Portland, Oregon. The talented plantsman from Sauvies Island, Oregon, owns a beautiful micro-nursery and jewel box garden and plant center, offering an extraordinary variety of hardy and semi-hardy ornamental species from around the world. And, remarkably, he doesn’t offer a single patented plant. He might some day.  He joked that all of eastern Oregon might be patented by the time he gets around to it. Wild plants cannot be patented – at least they are not supposed to be—but it’s doubtful a patent inspector would know the difference. If an application for a wild collected plant, with the accompanying paper work, were fudged a little bit, how could an inspector know if it had come from the wild? Would a back alley seedling, produced from seed blown from the wild, be considered “of nature”? 

At the symposium, with nearly 500 attendees sitting in the audience, Hogan asked, “Who out there still grows straight species?” I yelled approval louder than a born again Pentecostal at a tent revival. I didn’t have a lot of company. A lot of retailers fall easily for brand spanking new marketing claims and don’t care what the hell are on their sales tables—species, cultivars or patented plants – as long as they sell.

Information about where the newly introduced plants have been trialed is often scarce, and information about whether they will be durable (actually live) for a few years in different regions across North America is even scarcer.  Homeowners presume that retailers have had some experience with the new plants they are selling, but in fact garden centers usually know only what’s fashionable and what the breeders tell them.

And what the breeders pitch is the age-old “Newest is always better. Get ‘em while they’re hot!“ (Jelitto Perennial Seeds, my employer, is dipping its toes in the patented waters this year with their own asexually propagated, tissue-cultured, low-growing Gaillardia selections of ‘Fancy Wheeler’ and ‘Jazzy Wheeler.’)

What’s a grower, plant guy to do?

Every nurseryman I know would be tempted with the extra cash that a successful patent royalty-stream might generate. This simply acknowledges the state of the nursery business. The wolves, at any nursery door, are always as close as one rainy spring season; a string of weekend rainouts translates to no cash in the till. So Hogan is tinkering around with some different breeding lines, knowing what’s—potentially—in it for him. Like everyone else in the business, he’s heard tales about the pot of gold at the end of the rainbow.



imageOddball, open-pollinated seed-grown Echinacea ‘Doubledecker’

Photo: Courtesy Jelitto Seed

Congress enacted the Plant Protection Act in 1930, giving proprietary protection for novel asexually propagated plants. Roses and chrysanthemums have long led the way. Over 2000 roses and 1600 chrysanthemums have been patented though now only an estimated 15% are still protected. (A plant patent provides protection for 20 years.) Among those still active in a highly fragmented market, it’s unclear how many patents generate a decent return on investment. Patented Echinaceas and Heucheras, introduced over the past two decade, are the hottest new hardy perennials. There are now over 70 patented Heucheras and 50 Echinaceas listed by the United States Patent and Trademark Office.   

But in voting for Perennial Plant of the Year, members of the Perennial Plant Association have chosen only one patented plant: Geranium ‘Rozanne.’ Baptisia australis and Amsonia hubrichtii, voted Plants of the Year for 2010 and 2011 respectively, are both native to the U.S. and can be raised from seed. Some PPA members complain about the administrative costs associated with royalties: licensees pay the licensor each quarter, an obligation looked upon as favorably as filing taxes. With more red tape, PPA voters, many of whom possess a strong independent streak, may be even less inclined to support patented plants. The PPA has 1310 members who represent a wide cross section of the horticultural sphere: growers, garden center owners, landscape architects, landscapers, designers, representatives from arboreta and botanic gardens and serious hobbyists.

But home gardeners vote with their plant purchases.  An estimated one million plants of Gaillardia ‘Fanfare’ were sold in North America last year. At 15 cents a pop,that’s $150,000 in royalties. This does not include revenues from Europe or the rest of the world.  Plant Haven, the licensor, takes a cut and the originator, who found a dumb-luck chance seedling, gets a nice check.

Bob Stewart of Arrowhead Alpines in Fowlerville, Michigan, featured a section on “Plant Breeding for Dummies” in his 2009 catalog. (By the way, no one writes better garden-catalog copy than Stewart.)

“Make no mistake,” Stewart wrote, “I fully support breeders who spent years meticulously crossing and recrossing, rescuing embryos, splicing genes and so forth. What I deeply resent is the patent office granting patents to people who have simply sown out some open pollinated seed and fill-out some forms. This sort of thing is beyond contemptible.”

There have been 21,000 plant patents issued since the first one was accepted in 1930. It’s estimated the list has doubled in 25 years. I don’t know of any patented ornamental perennial yet, that has involved the more complicated gene-splicing that has dominated agricultural crops.  (The code has been cracked on roses.)  If you want to work with gene guns, you’d better be willing to pay the piper (someone owns the patents on the gene gun). Fantasizing about splicing the color blue into hollyhocks? You’ll need to pay-as-you-go for the delphinidin (blue) gene.  (Planting blue flowering chicory might be a lot simpler and cheaper.) The genetic manipulation of corn, soybeans, cotton and potatoes has gotten the lion’s share of attention and controversy. But after the smoke blows off the gene gun, these big commodity-crops breeders must still undergo years of straight line breeding. Gregor Mendel did it with beans, Monsanto did with soybeans and you will have to do it, too – for eight or 10 years. And you may strikeout before you strike gold.

Bob Stewart advises in Step1 of “Plant Breeding for Dummies,” “Forget the new wild genetic material, that is for the advanced master gardener version and it’s probably politically incorrect to use wild material. It’s best left where it is so the folks in Rio can burn it. If you forget to save seed, order some from one of the seed exchanges. The donor probably saved it from good forms anyway. Forget the stuff about stamens and sex is too much like work. Actually, just forget the stamen part and hum a bit of ‘Night Moves.’”

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Cercis ‘Alley Cat’—liners at Neubauer’s Hidden Hollow nursery

Photo: Courtesy of Alex Neubauer

I can help, too. ‘Alley Cat,’ the variegated phenotype, with splashed white floral pigments, is hotwired with transposable genetics that will produce a copycat a percentage of the time.  Plant one, collect some seeds, and start your own little backyard breeding operation. Of course, your odds of finding something new might be better here in Kentucky. Theodore Klein, grandfather of my sister-in-law, Holly Cooper, operated a nursery in Crestwood, Kentucky, and started planting what became an arboretum in 1941. The popular Yew Dell Gardens, only twenty-two miles from my garden, is now open to the public.

Theodore Klein introduced the variegated redbud Cercis canadensis ‘Silver Cloud’ in the early 1960s. His son, Jules Klein, recalls finding ‘Silver Cloud’ in a row of Tennessee sourced seedlings in 1963. Is there something in the air around here?….

Magic Johnson, the former NBA star, cleared the air after the “LaBacle.”  He supports the superstar’s quest for a championship. “You can’t knock him for that,” Johnson said. LeBron James possesses basketball skills as rare as somatic leaf variegation. And LeBron seems like a nice fellow, too; I hope he wins a ring. He can play a pick-up game on the playground, just for fun, too. He loves basketball but he can’t divide and pass along a patented plant to his new south Florida neighbors —at least not until the patent expires after twenty years.

Mike Hayman’s plantings will be around long after LeBron has retired and the current round of hot plant patents have come and gone. His trees – most introduced with little fanfare—do the talking. And, oh, the stories they could tell about ice storms, hot summers and all the heartache and joy that go into planting a tree.


Posted by .(JavaScript must be enabled to view this email address) on 08/15 at 09:20 PM

Comments

Allen, not a bad garden copy writer yourself!  Congratulations on ‘Alley Cat.’  If I had a garden, I’d plant one next year.

Posted by Georgia on 08/16 at 07:09 PM

What a beautiful tree. I agree with your decision to not patent it, though. Patents are for annuals and perennials; that’s where the real money is.

Also, great and informative post! Thanks for it.

Posted by Susan in the Pink Hat on 08/18 at 10:48 AM

Any flower project is interesting by itself; your human Flower project is much more interesting than the average plant blog. Congratulations.

Posted by Marco on 08/22 at 03:17 PM

Thank you Georgia and Susan! And Marco, I’m so glad you find the Human Flower Project so interesting.  I do, too!  We’re all so grateful to Julie for her inspiration, creativity and gift.

Posted by .(JavaScript must be enabled to view this email address) on 08/24 at 04:10 PM
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