New Cultivars & Plant Patents

Discussion in 'Cornus (dogwoods)' started by Gordo, Jan 13, 2006.

  1. Gordo

    Gordo Active Member 10 Years

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    Camano Island, WA
    First of all, let me start by saying that I love the fact that anyone can "discover" a new variety of plant, regardless of genus. With dogwoods, it is exciting to find new varieties to choose and grow, since seedlings seem to exhibit a fair amount of diversity. Having said that, I am wondering if some kind of reasonable standard needs to be implemented regarding the issuance of patents for said new cultivars. A case in point, drawn from a previous thread: Cornus kousa 'Satomi' and Cornus kousa 'Heart Throb' appear, based on DNA evidence, to be either identical or extremely closely related. Who then, now controls how this (these) cultivar(s) are propagated? As growers go forward with new introductions, should DNA fingerprints be included as a condition of the patent process, and should new plants be clearly different from known cultivars in the nursery trade? It only seems fair. Any thoughts?
    Last edited: Jan 13, 2006
  2. mr.shep

    mr.shep Well-Known Member 10 Years

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    San Joaquin Valley, California
    When I first became interested in Oriental Dogwoods
    there were not many around. We could almost count
    the number on one hand that could be obtained from
    specialty nurseries. In the early 90's there seemed to
    become an explosion of sorts as this list from a Greer
    Gardens 1993 catalog will attest to. Ron B can get
    more technical with the names if he so chooses but
    I'll leave these, as is, for now.

    Cornus kousa

    'Autumn Rose'
    'Blue Shadow'
    'Bon Fire'
    'Bush's Pink'
    'China Girl'
    'Dwarf Pink'
    'Ed Mezitt'
    'Elizabeth Lustgarten'
    'Gold Star'
    'Milky Way'
    'Radiant Rose'
    'Repeat Bloomer'
    'Satomi Red'
    'Summer Stars'
    'Temple Jewel'
    'Tichnor's Choice'
    'Trinity Star'
    'Weaver's Weeping'

    Now before anyone wants to comment let me
    point out that there were two Universities in
    close proximity to Greer Gardens that knew
    of these Dogwoods. I think it is unfair for
    me to show the above list as I did it without
    asking for permission. The possible mistake
    of oversight made here was solely mine but
    I know of some of these Dogwoods also.
    The point I want to stress is that Mr. Greer
    is off-limits. He nor his catalog is the issue
    here, the issue is me and what I did with the
    above, not him. I would hope we can deal
    with just the plight of the Dogwoods above.

    Ron can probably tell us which of these were
    patented through the US Patent Office or not.
    From a nurseryman's point of view it did not
    matter if all or none of these Dogwoods were
    patented or not. All we cared about was whether
    they should be named or not or were any of these
    Dogwoods above just a form or a slight variant
    of one of the others. From a Oregon propagators
    standpoint the names did not matter much as the
    nursery that felt there was a market for one or
    more of these Dogwoods would go ahead and
    propagate it by the name they got the plant from
    Greer Gardens as being and yes, fellow OAN
    members did buy from and sell some plants
    on occasion to Greer Gardens and still do.

    A further note:

    Mr. Greer's mail order catalog became the
    standard in Oregon, the model that others
    years later tried to match as everyone was
    watching to see how successful this novel
    endeavor, at the time it was initiated, would
    work out and was quite the envy of a lot of
    people. I can tell you from down here there
    were some California nurserymen that were
    flat out jealous about it all and others were
    quite complimentary as well.

    I'll wait until later to add in any comments I
    have about the DNA issue. I would think
    someone from an Arboretum or a Botanical
    Garden or from the intellectual side of plants
    may have a good idea and offer a plausible
    explanation about how they feel about the
    merits of proof of DNA versus plant patent
    issue and whether it should be requisite or

  3. Daniel Mosquin

    Daniel Mosquin Paragon of Plants UBC Botanical Garden Forums Administrator Forums Moderator 10 Years

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    Vancouver, British Columbia, Canada
    DNA fingerprint standards do not exist yet, as far as I know - and we're talking a very, very, very small slice of DNA that would be used for comparisons when DNA fingerprints are standardized.

    However, at the level of variability of cultivars, possibly accomplishing it would require either mapping the whole genome and comparing it or being able to target the genes that seem to be the cause of variability - a fairly expensive proposition.

    There are other methods of comparison, though, such as allozymes, which are often used to analyze populations. However, this isn't really refined enough to compare closely related cultivars.

    The old standby of side-by-side comparisons in field trials and careful observations by knowledgeable horticulturists and botanists is still the best method, I think.

    As to whether new plants should be different, well, yes, of course. If a breeder does do the patent route, then they do have to be justified as being different (here's an example of a plant patent).
  4. Gordo

    Gordo Active Member 10 Years

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    Camano Island, WA
    Thanks for the information, Daniel. I had no idea that plant patents were as detailed as the one you cited. Is this typical? The science involved in DNA technology is way over my head, but I suspected it might involve significant effort and cost. For the time being, I wonder if it would be possible to establish some sort of official genome data bank to at least store the genetic information in some manner - or perhaps this has already been done. Just wondering and thinking. Thanks again.
  5. Ron B

    Ron B Paragon of Plants 10 Years

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    WA USA (Z8)
    Fruit cultivars are being conserved as genetic material at storage facilities. There is one for strawberries and brambles in Corvallis. They have pages online. Other plant patent descriptions can be viewed at the site linked to above, most easily by using Plant Patent Number Search function. Most descriptions have similar formats.

    Genetic comparisons mentioned in Cappiello & Shadow, DOGWOODS (Timber Press) were done recently at U of Tennessee. Possibly there is more information online or elsewhere about this analysis. Also, a friend saw a dogwood breeder (Orton?) speak at Farwest (nursery trades) Show some years ago who said anthracnose susceptibility and pink bracts were linked genetically. The implicaton of this is that some DNA work had been done.
  6. Gordo

    Gordo Active Member 10 Years

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    Camano Island, WA
    As I browsed the Dogwood plant patent applications, using the search command ccl/plt/220 at: I noticed that in many cases there is no name attatched to the plant, or the name given is different than the trade name. How does one determine which cultivar name is associated with these patents?
    The dogwood patents I found total 56, starting in 1940, and provide a good source of information, if you're willing to wade through it.
    Last edited: Jan 30, 2006
  7. Gordo

    Gordo Active Member 10 Years

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    Camano Island, WA
    Just another thought and suggestion concerning PP & new cultivars; Perhaps it would be of value to include some basic information regarding the origins of these plants, patented or not (inventor, breeder, introducer, etc.) in nursery catalogues.
  8. Ron B

    Ron B Paragon of Plants 10 Years

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    WA USA (Z8)
    Many do so already. Sometimes a mention in a wholesale catalog is ALL there is in the way of a original description for a new tree.
  9. Gordo

    Gordo Active Member 10 Years

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    Camano Island, WA
    Yes, you're right, Ron. And some do a very good job in this regard. My hope, just wishful thinking, perhaps, is that enough information is passed along to the consumer to know exactly what they are buying, or at least enough to do further research on one's own. I always like to know as much as possible about the history, breeding, etc. of a plant that I choose to grow.
  10. mr.shep

    mr.shep Well-Known Member 10 Years

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    San Joaquin Valley, California
    So far the DNA studies in Cornus kousa to determine
    parentage of two similar plants have been inconclusive.
    This will probably change when we have a better idea
    what we need to be looking for in our lab studies. We
    can get into a little trouble when people claim to be
    doing DNA analysis, yet have a whole other agenda
    for why they are doing the analysis such as using the
    "base pairs" as a means to facilitate the quick breeding
    of the Oriental Dogwoods for the purpose of being
    able to grow in vitro the manipulated cells on via
    tissue culture. That we can work on but to backtrack
    and say this or a series of tests will show that a white
    flowered Kousa selected out in California is of the
    same line as a Kousa selected out in Japan are the
    same plant has a ways to go before we really know
    what we are doing. Years ago I was asked could a
    seedling Japanese Maple that was raised in Japan
    40 years previous look the same, for all intensive
    purposes, as a recent seedling selection found in
    New Zealand? I said yes, it could happen and in
    some cases it just may have happened recently
    with some of our palmatum cultivars. In Dogwoods
    that same issue may have come about with two
    white flowered Cornus florida both selected out
    in two different areas several years apart in that
    some people feel they are the same plant so a
    DNA analysis was performed to see if they are
    the same and all but one test yields they are the
    same but the one area where they are not the same
    may be the more telltale subject for us to know
    more about when dealing with very similar yet
    not fully tested or explained gene pools.

    DNA may not tell us all we need to know about
    the actual genetic makeup of the plant we are
    testing is what I am getting at but we are getting
    closer to better knowing the various DNA in a
    plant, how they are different and how they function.
    We cannot always equate "plant DNA" as being
    the same as chromosomal DNA or ribosomal
    DNA and could a rootstock influence the scions
    chromosomal DNA? Now we are splitting hairs
    but unless the while flowered Dogwood selected
    out in Minnesota and the white flowered Dogwood
    selected out in California were grafted onto
    genetically the same understock then I have to
    believe the plants, not necessarily the flowers,
    are different from each other in some way,
    although we not always see it. While people
    today may want to know the DNA composition
    of the flowers and the plant, I want to know how
    many and which genes regulate the size, color
    and form of the flowers. When a plant breeder
    states that there is a genetic link between Dogwood
    anthracnose and flowering of a particular Dogwood
    they had better be able to prove it and tell where
    the mutation occurred or is occurring to precipitate
    a known linkage. I do not feel the current day plant
    DNA researchers are "there" yet, not without some
    help coming in from elsewhere.

    Enough for now.

  11. Gordo

    Gordo Active Member 10 Years

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    Camano Island, WA
    I believe the 2004 University of Tennessee Study referred to is:
    Trigiano, R.N., M.H. Ament, M.T. Windham and J.K. Moulton - "Genetic Profiling Of Red-Bracted Cornus Kousa Cultivars Indicates Significant Cultivar Synonomy". Hortscience 39. 489-492
    I was particularly struck by the last statement of the study as it relates to my original post; "We encourage nurserymen and plant breeders to employ DNA profiling of new materials before patent applications / cultivar releases to avoid confusion of similar plants in the trade".
  12. mr.shep

    mr.shep Well-Known Member 10 Years

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    San Joaquin Valley, California
    I am not sure why the plant patent aspect is so important
    for nursery grown plant material. For Universities to
    work on the breeding and selection of new forms of
    plants then the plant patent process makes more sense
    as then the newly developed and worked on plants are
    protected. For the nurseryman it depends on what they
    want but a few plants that have been patented through the
    US Patent Office were not unique and new as some of
    them were seedlings raised from an earlier recognized
    plant. The other inherent issue is that the person that
    developed the Dogwood may not be the person listed
    as being the creator of it by online web sites, books and
    even in Society archives. I've seen more than one example
    of a Dogwood referenced back to the first source to sell
    it in a catalog and it is that person that people are listing
    as being the source of the plant. How am I supposed to
    feel when I know the person that actually developed the
    plant? Why should I tell you guys who he or she is when
    no one seems to want to know? It is a slap in the face to
    all of us that know the plant and its history when the
    person that does not grow any plants gets the credit for
    another person's work that did indeed develop the plant
    in question.

    There are times you guys make it easier for me, yet I am
    reviled by it, when you do not believe me when I write
    about a plant that perhaps none of you know about. I
    wrote about the old 'Satomi Red' which had its start in
    Japan. The first catalog that offered this plant for sale
    referenced the plant as coming in from Japan. Now 13
    years later there is no mention of the origin in the newest
    catalog. My question was and I checked out the newest
    offering, are they the same plant? The answer is no, they
    are not the same plant. One has coloring in the flower
    which starts out with the rose-red and holds its color more
    uniformly and the other one starts out a cream in color
    and later the flower develops the rose-red color with a white
    mottling of color in the center of the flower. Catalogs do
    not tell you this stuff, you have to see it and be around it
    to know it.

    Names of Dogwoods have no meaning if we cannot tell the
    plants apart. When people see a new name of a plant they
    have interest in they go gaga over it but who is out there
    studying the plant and asking themselves should this plant
    have been named in the first place? DNA analysis can
    help for future reference but the current day techniques
    are not valid enough to show that the Satomi raised in
    Japan in the late 70's is different from the plant selected
    out in the 90's as a seedling in Oregon for example. Once
    the researchers get a handle on what they are doing, build
    a genomal or DNA databank to work from, then we are in
    a better situation for using DNA analysis as a main tool
    for subsequent approval from the US Patent Office. We
    are simply not there yet as there are too many Dogwood
    cultivars out there, some only in collections that people
    will have to know, take samples of, sort out and then
    use as part of the model for all Dogwood introductions.
    The problem from the nurseryman's point of view will
    be this: what happens when a guy in Gresham selects
    out a promising seedling, duplicates it by cuttings and
    then have the Patent Office refuse a patent all because
    one University said that the DNA is not any different
    than a Dogwood that has already been recorded? The
    nurseryman that may have that referenced base plant
    and feels his or her new plant is different will go
    ballistic and I don't blame them. I may not agree with
    the naming process of many of our plants but I will
    side with the person that developed the plant. People
    just will not go through a patent process then and will
    go ahead and introduce the plant into the nursery trade
    and say the heck with everyone else. We have seen the
    same thing going in Japanese Maples in which seedlings
    of forms of other Maples are being named in hopes that
    no one knows what the old forms look like. It does not
    matter that there are collections that have the old forms,
    we have a new Maple but it is really new? The vast
    majority of people in the Maple forum will not care, they
    will see the new name and will want one. They aren't
    going to care that a 'Beni shien' may be the old red form
    of 'Matsugae' that has been around in a few very select
    collections since the 70's. People do not get to see the
    red 'Matsugae', know nothing about it so why not go out
    and buy a 'Beni shien' as that new Maple is available to
    them now when the 'Matsugae' was not ever obtainable
    to them.

    My old kousa is a chinensis that starts out with a chartreuse
    flower with a pink border. As the flower ages the color
    fades to a cream color but the pink border at the ends of the
    flower petals holds, very much like Cornus florida 'Jackie'
    in that same respect in that as the flower ages the pink border
    becomes more visible and more pronounced. I've not ever
    seen another kousa quite like this flower. I could have named
    this plant years ago but the plant did not originate from me.
    It shall remain unnamed and a safe distance from the DNA
    guys as I am not going to let them play with this one until
    they can demonstrate that they know how to tell plants apart
    by using bona fide and verifiable scientific means to show
    that they are on top of things. They are getting closer to
    where they need to be, no doubt about that but they are still
    primitive in how to interpret their data that they are getting
    and currently have. Until they have some built in databanks
    of information in order to accurately be able to separate out
    similar plants, then DNA analysis is not ready to be mainstream
    in the process to be used as the primary tool for plant patent or
    for plant identification purposes.

  13. Gordo

    Gordo Active Member 10 Years

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    Camano Island, WA
    Thank you, Jim. You make some very important and relevent points - some of the same issues I was trying to raise. The most fundamental question: how can we reduce the confusion surrounding existing cultivars? More particularly, how do we establish that a previously known named cultivar is the same as that now known, or is distinct from newer introductions.
    I also heartily agree with your arguement about establishing the true and most complete history possible for plant introductions, and I thank you for the personal knowledge you have offered here. Any further specifics you care to relate concerning dogwood introductions will also be welcomed.
    I won't comment on your statement that DNA technology is not "there" yet, except to say that it seems undeniable that DNA technology (and plant patents, too, for that matter) will play an increasing role in plant production for both scientific and commercial reasons.
    Last edited: Feb 6, 2006
  14. mr.shep

    mr.shep Well-Known Member 10 Years

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    San Joaquin Valley, California
    A quick note:

    I look at things from a purists perspective. All I have done is
    offer my opinion on the current state of affairs of Dogwoods
    but the ramifications can also apply to a host of other specialty

    I am not saying the DNA analysis has no practical application.
    We've seen one rather important study done on a series of
    Ledums in the UBC forum in that if I knew anything about
    Ledums I would have lots of questions to ask. Instead I have
    to try to absorb what was written and think in terms of the
    impact this study may have on existing and perhaps future
    Rhododendrons. I like the fact that people are working on
    using DNA analysis but in order for it to be effective we
    have to be a little more sure of how we apply that technology.
    We have to backtrack and do some serious analysis of known
    cultivars and forms before we can apply the techniques to be
    a foundation for the newly introduced forms. For a new plant
    to be patented in the near future it may require proof of DNA
    but as of right now we cannot show this proof from our results
    in conclusive terms that will satisfy all the "players" in the
    nursery and plant breeding worlds. That will change for the
    better soon enough.

    The problem will be dollars and who out there is wanting
    an immediate return on their investment. We have seedling
    plants being named now within 3 years of their existence
    which makes a mockery of all that we know and apply toward
    the naming of plants. I know of Japanese Maples that were
    not named up to 20 years later all because the person that
    raised the plant wanted confirmation from other sources
    that the Maple was indeed different enough to be named.
    We do not see that sort of "higher standard" commitment
    applied to plants today. I do think for the long term that
    the fields of Molecular Biology and applied Genetics will
    become a closer to being the reality of what some people
    hope will be the true and all encompasing field of Molecular
    Genetics. When we apply what we know and can prove our
    work from these fields, then we will have a solid foundation
    for the US Patent Office to use as their basis to confirm or
    deny, if need be, plant patents in the future.

  15. Jaybee63

    Jaybee63 Rising Contributor Maple Society 10 Years

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    Fareham, Hampshire. Hi UK
    Mr Shep refers to a red form of Matsugae. I recently bought Matsugae from Barthelemys and it is leafing out red. I can find no reference to a red from of Matsugae other than Mr Sheps post above.
    Maybe it is labelled incorrectly. Does any one have knowledge of the red form?


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