The Handbook on Oleanders

Turner's Shari D™

14

Among the grasses,

A flower blooms white,

Its name unknown.

                                 Shiki

Plant Patents

The world is indebted to those who are instrumental in creating and/or discovering new plants. We have included this section on plant patents to encourage anyone who has ever considered hybridizing, or who may have discovered a new and unique plant, to understand the United States patent process as given in the examples below. If a new plant is truly of merit, having characteristics superior to the type whether in flower form, shape, color, size, length of flowering season or plant habit, etc., one does not have to be a nurseryman to produce it commercially. There are many growers who will gladly pay a royalty for the opportunity to propagate a new cultivar and make it available to the gardening public.

It is quite fascinating to read about the process of patenting and we have attempted to include all the information you will need to begin. Ted Turner, Sr. says the first and most important step is to find a good patent attorney who is registered with the Patent Office. Formerly, it would take three years or more to get a "Patent Pending." Today, with the aid of computers, it usually takes less than a year.

Turner cautions that one must be very careful that everything is filled out correctly on the application (hence the need for a good patent attorney) because if there are any errors you will have to wait another year before re-applying. If a plant i& sold under a "Patent Pending" label one takes a chance that the patent might not clear the Patent Office and during that period anyone can patent the plant. Turner strongly advises that one only patent something truly exceptional.

"HOW TO REGISTER PATENTS, TRADEMARKS"

(from 'Nursery Manager, July 1989)

The Plant Patent Act, passed in 1930, gives certain rights to the discoverer or developer of a plant that is reproduced asexually.

That plant must be new and distinct from any other, and that distinct difference — be it in habit, color, blossom, fruit, fragrance, adaptability, etc. — must be reproducible through asexual propagation.

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Such plants may be the result of planned hybridization, seedling selection, naturally occurring mutations, or "sports."

Plants reproduced by seed are protected under the Plant Variety Protection Act; the owner controls multiplication and marketing the protected seed for a period of 18 years.

Plant patent protection lasts for 17 years from the date the patent is granted. Current law requires that a plant patent application contain a varietal or cultivar name. Therein lies some confusion because U.S. law prohibits trademarking of variety (cultivar) names. So a patent owner may choose to market his special plant under a trademark name that must be distinctively different from the cultivar name. Trademarks last for 20 years and are renewable every 20 years so long as the mark is in use.

As of June 6, (1989) some 6840 plants have been patented since 1931, when the first U.S. patent was issued to the rose 'New Dawn.'

The national Association of Plant Patent Owners has a primary purpose "to foster general environmental enhancement by improving varieties of plants for the  betterment of man."

The organization monitors federal legislation and regulations that impact plant patents pr trademarks, and it works with international organizations of plant breeders on matters of common interests, keeping abreast of laws covering plant protection in foreign nations.

"NAPPO has funded research to provide more scientific means of plant identification through the use of plant fingerprinting," said Ben Bolusky, administrator of NAPPO and director of governmental affairs for the American Association of Nurserymen.

The International Convention for the Protection of New Varieties of Plants, signed by the United States and 16 countries, currently is undergoing wholesale revision in meetings in Geneva, Switzerland. NAPPO has been asked by the federal government to attend.

"The U.S. is the only nation that allows such private sector advisers to the delegation," Bolusky said.

For more information about books and lists, membership in NAPPO, or member law firms, contact the National Association of Plant Patent Owners.

"How to Use, Select and Register Cultivar Names," available from the AAN may also be useful.

Contact both NAPPO and AAN at 1250 I St. N.W., Suite 500, Washington, D.C. 20005; (202) 789-2900; fax (202) 789-1893.

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