Patently absurd
OK, I confess, I’ve been to Lowe’s again. [Brits: this is a huge B&Q-type place, often decried by serious plants people.] I was there to by timber, OK?, but I took at the plants while I was there. What did I find?
I found a batch of the pretty Japanese Painted Fern, Athyrium niponicum var. pictum, with a big colorful label. And right after the name were the letters PPAF – Plant Patent Applied For. Well, they may have applied for a patent but they must know perfectly well they won’t be granted it. Why waste their money? Perhaps to put people off propagating from their stock? Why bother?
If a plant is patented then anyone except the patent holder must negotiate a license and pay a fee to propagate and sell the plant - plant patents are intended to ensure that anyone who spends time and resources developing a new plant is properly rewarded. But this plant fails on a number of Plant Patent rules published by the US Patent and Trademark Office. A plant can only be granted a patent if:
- “the plant was invented or discovered and, if discovered, that the discovery was made in a cultivated area.” – Failed: this is a wild, naturally occurring fern from south east Asia.
- “the plant has not been sold or released in the United States of America more than one year prior to the date of the application.” Failed - I’ve known this plant for thirty years and I’m sure it’s been around a lot longer than that. It was even chosen as Perennial Plant of the Year on 2004!
- “the person or persons filing the application are those who actually invented the claimed plant; i.e., discovered or developed and identified or isolated the plant, and asexually reproduced the plant.” – that would be God. Failed again.
- And so on…
Oddly enough, it turns out that there are no applications pending for patents on athyriums… So it looks as if there never was an application – just the letters on the label.What are they playing at?
The truth is that the wild form shown at the top of this page has been
surpassed by superior selections made in gardens – some of which, like
‘Silver Falls’ are patented, and some of which, like ‘Wildwood Twist’
are not. Take your choice.
Photo of Athyrium niponicum var. pictum distributed under the Creative Commons Attribution-ShareAlike License 2.5
Agree! I had personal experience of a similar issue. In 1994 I imported a colourful Canna from South Africa that I believed to be called 'Durban' and marketed it through the nursery I then ran. Subsequently it was introduced worldwide as 'Tropicanna' with a patent, brightly coloured label and orange pot. I shrugged my shoulders and moved on! A 'small' UK grower subsequently decided to challenge this and it went to a European plants patent tribunal and he won!
'Tropicanna' still seems to be around but most stocks, like many commercial cannas, are now badly virused. The original 'Durban' that I still have is strong and healthy!
Posted by: Ian | July 21, 2007 at 05:55 AM
I wrote this issue up in my Encyclopedia of Perennials... and was preparing to go back to it here in canna season - in a few weeks time.
Posted by: Graham Rice | July 23, 2007 at 02:19 PM
The US patent system is broken.
The USPO will grant just about any patent, and any problems can just be litigated away -- or scared away with the threat of litigation.
I'm sure you'll disagree, but I'm a little dubious about the idea of PVP in the first place.
Posted by: max | July 23, 2007 at 03:42 PM
Sometimes I think it's just a mistake by an overzealous label designer, but the conspiracy theorist in me wonders if it's not an attempt to make people buy more plants or falsely add credibility to their brand.
It makes me think of the Symphoricarpos Amethyst [TM] plants that I had from Spring Meadow. Their labels all said that propagation was prohibited, but the plant only had a trademark on it. You can propagate all you want -- just don't call it Amethyst [TM]. Label error, or marketing ploy?
At any rate, PPAF is roughly equivalent to 'Patent Pending', for which there is a steep fine if used falsely. Let the patent office know! Maybe Lowes will be more careful with their labels in the future. :)
Finally, one other misconception to clear up. You can propagate a plant all you want until the day that the patent comes out. PPAF gives them no rights except to inform you of it's pending status, but on the day that a patent is issued you must destroy all of your stock. It gives breeders a brief window in which to create stock for their own hybridization efforts or to try for other mutations...
Posted by: Christopher Lindsey | July 23, 2007 at 11:50 PM
Thanks Chris - great to have the scoop from the man who knows. Perhaps it was a mistake by the label printer - still no word from the nursery whose label featured the PPAF.
But hey... just don't call it Amethyst[TM]? No no no. There (as they say) be dragons. Here am I trying to make sure plants only get called by one name...! There is an issue, I know, unresolved I gather, about the relationship between cultivar names and trademarks - this is all pretty arcane stuff... sorry.
Have no fear... I'll be coming back to all this Plant Patent stuff...
Posted by: Graham Rice | July 25, 2007 at 12:34 PM