New Cultivars & Plant Patents

[Gordo]

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?

[mr.shep]

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'
'Greensleeves'
'Milky Way'
'Moonbeam'
'National'
'Radiant Rose'
'Repeat Bloomer'
'Satomi Red'
'Snowboy'
'Snowflake'
'Summer Stars'
'Sunsplash'
'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
not.

Jim

[Daniel Mosquin]

Originally Posted by Gordo

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?

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).

[Gordo]

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.

[Ron B]

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.

[Gordo]

As I browsed the Dogwood plant patent applications, using the search command ccl/plt/220 at:http://patft.uspto.gov/netahtml/search-adv.htm 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.

[Gordo]

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.

[Ron B]

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.

[Gordo]

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.

[mr.shep]

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.

Jim

[Gordo]

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 http://www.ces.ncsu.edu/fletcher/pro...tal/index.html
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".

[mr.shep]

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.

Jim

[Gordo]

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.

[mr.shep]

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
plants.

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.

Jim