What are the rose patent rules in USA?

Rosecandy VA, zone 7June 16, 2014

I'm going to start breeding roses soon (hopefully this year) and was thinking if by some miracle I breed a really nice, and hopefully unique, rose that I might try to sell it commercially.

I remember once reading that if one was to put any kind of identifying information about a plant in a public source, such as an online forum, that the plant cannot be patentened. Among the examples listed were mentioning the parents of the plant and posting pictures. This sounds really made up as it doesn't make any sense. I tried to find patent information online, but it's all gobblety-gook to me.

Those who live in the USA or are familiar with our laws, can you tell me if it's true and I should not even post pictures of my baby roses until after they're patented or I decide they aren't good enough to patent?

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The laws changed within the past year or so. Posting ANY identifying information about a potentially patentable seedling anywhere "begins the clock". You have one year from that point in which to patent the plant. If YOU can find it on line, the patent office can. Feel free to post your photos, etc., but if the variety is promising, keep it to yourself or possibly forfeit the ability to patent it. You can research the information at the link below. Kim

Here is a link that might be useful: Plant Patent information

    Bookmark   June 18, 2014 at 10:34PM
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Rosecandy VA, zone 7

Wow, after reading that I really don't know how amaters even try to apply for patents.

"Feel free to post your photos, etc., but if the variety is promising, keep it to yourself or possibly forfeit the ability to patent it. "
I don't really understand this sentance (or what website says about it). I won't know if it's promising for at least several months after bloom, if my understanding is correct about determining desease resistance and root growth. Does that mean it's "not safe" to post photos of a rose that isn't just white, pink, or red (common colors) without possibly forfeiting a patent? What exactly counts as identifyable information? Is just naming the parents and posting a picture enough to "start the clock"? What if I was to post a picture and not even name the parents of a unique colored rose, say white with purple poka-dots?

From the website:
"(i) Detailed Botanical Description of the Plant. This section should be a complete botanical description of the claimed plant."
In that paragraph it mentions the need to describe the mature shape and habit of the plant. I've read it takes roses 3-7 years to fully mature. Does that mean that every patented rose was bred at least 3 years before the person even filed for a patent?

Sorry for all these questions. I like doing research before the last minute if possible and these patent rules don't make sense to me. You've bred and sold roses, right? Did you bother to patent them?

    Bookmark   June 19, 2014 at 12:23PM
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Hi Rosecandy, yes, I've bred and released roses. No, I haven't patented any. The fees for the paperwork are there on the web site. As you can see from them, it still costs a LOT of money for patent protection. MUCH more than I (or likely you) could expect to recoup from any one variety. A major player such as Week's, Conard Pyle, etc., already has the people skilled in filing the paper work and describing the plants. For them, the costs are similar but they have the people and procedures in place. They also have the pipeline for production and distribution in place so they are much more likely to move the quantity of plants required to make back those costs and produce a profit. What good would it do for either of us to spend $1000 to "protect" a plant when we're likely to sell a few dozen, perhaps even a hundred under great results, because we don't have the advertising, production and distribution channels? Far better to produce something you think worthy and interest a commercial concern in producing it. Yes, it's going to take several years for trial and production and you are best off not providing anyone information about it other than those producing it.

Say you produce the white and purple spotted rose and it proves itself worthy of introduction. Say that takes the minimum three years (very fast for something really commercial, but OK for arguement). Perhaps you posted a photo of it here on GW in your enthusiasm and even might have provided the parentage. If that post occurred more than one year from the date you apply for patent protection and it is searchable by the patent office, you are out of luck.

Those who are already producing such potentially commercial, potentially worthy of patent roses do not divulge their creations publicly until they are tested and any protection is applied for. Jim Sproul, "daddy" of the Eyeconic Hulthemias, Thrive! and quite a few other very nice roses, only shares photos of and information about progress in his breeding. Anything he feels might be "commercial" is never shared until it has either been found unsuitable or protected and ready for introduction. It is completely safe to make statements such as a particular rose or a particular cross is producing good results, but if that statement contains any information which specifically identifies a specific seedling, you have "publicly introduced" that rose.

Yes, that means if a rose is patented, it most likely was raised quite a few years prior to the patent date. You see how much it costs to patent the plant. It can take several years to build enough quantities of a single plant to be able to supply demand. All of that costs quite a bit of money if you're considering a national introduction through an established, commercial producer. Of course no where near what it cost years ago when a J&P might be gearing up to sell many hundreds of thousands of a single variety, but it's still a sizeable chunk of cash. No one is going to gamble that kind of money on a plant until it has been tested in as many conditions and climates as possible and proven itself worthy in major markets.

If you're not patenting it, I know of those who have raised a seedling one year and introduced it "commercially" the next. It's the testing and creating the ability to supply many thousands of plants, generating the advertising images and copy, supplying the "pipeline" which takes time and adds costs.

Anything which allows that specific rose to be identified postively will start the clock. A seedling number, a test name, images showing something characteristic of that specific rose, anything which could be used like a finger print, can start it. Identifying it as a cross between two parents shouldn't because there can be many thousands of seedlings raised between two roses. But if you say seedling #, code named "xyz" which is a single, pink shrub, then you have "introduced" that rose. That information can specifically identify that exact variety. You have "finger printed" it. Once you publicly post photos of it which can further be used to identify it specifically, you have introduced it. If that specific bloom is contained in a group shot of many seedlings or other plants and not specifically identified by name or number, you're OK because you haven't identified that variety.

Bottom line is, unless you are well-heeled and patenting the rose purely out of vanity, an "amateur" is probably better off NOT patenting a plant. You will never recoup the investment unless you can generate and SELL enough plants to cover all of your costs. Kim

    Bookmark   June 19, 2014 at 4:45PM
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Rosecandy VA, zone 7

Interesting, and eye-opening.
It's a shame the government makes it impossible for small growers to have the same advantages of big growers, but who says we can't enjoy it anyway? I think I'll follow your advice and just have fun showing pictures and not worry about patenting...even if I breed a white and purple spotted rose ;)
Thank you very much!

    Bookmark   June 19, 2014 at 9:37PM
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But, it isn't the government "making it impossible for small growers to have the same advantages as big growers". Paperwork costs money whether it is you or Week's. Once taxes began being lowered tremendously, which they HAVE been over the past forty-plus years, funding had to be made up elsewhere. All fees for everything have been raised greatly. It used to be free to obtain an import permit. The biannual inspections were free. NOT any more. You can obtain the permit without paying anything, but you must now travel to your nearest USDA office to prove who you are just to submit an application. Then, you PAY for the inspection to determine if your site is suitable for the quarantine requirements. That can range from about $80 to over $300 depending upon how far you are from the nearest office. And, that is up to TWICE a year, for up to TWO years, perhaps more if the inspector thinks something is odd with your imports.

Way back when, the plants simply came through the mail and arrived on your doorstep. Not any more. Now, if the nearest point of entry to you is a high security point, you must hire off duty USDA personnel, on over time, to hand carry your roses through the inspection process or they don't get inspected. Inspection at the USDA office was free. Not any more. I know of one batch for which the fees plus handling ran $600. Too rich for my blood.

As I said, all fees have gone up. I currently pay more than twice what I used to pay here for car registration, and it isn't due to driving a more expensive car. There is a bottom amount fees fall to for older vehicles. It's now twice what it used to be. We're going to pay, one way or the other. Now, instead of the higher income tax rates of the past, it's higher fees for everything.

I continue sharing photos of many of my seedlings. But, those which actually impress me as worth testing for commercial suitability, I don't. I will send bud wood to Europe next month of twelve varieties which haven't been "introduced" anywhere. No photos, no names, sketchy descriptions are all that have been mentioned so if they are found suitable, they can be named, patented and sold. If you raise a white and purple spotted rose on a GOOD plant, you'd better not post photos or even mention it. Contact someone like Conard Pyle and have it tested. Novelty still sells, but it's always best on decent plants. Good luck! Kim

    Bookmark   June 19, 2014 at 11:05PM
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You can also go to the Proven Winners website. They have a very informative write up about getting from the seedling to a patented plant ready to be distributed. Meg

    Bookmark   June 19, 2014 at 11:15PM
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Rosecandy VA, zone 7

So keep them secret until I know they aren't good enough to patent. Thank you so much for your help and information!

Shrubbrish, I'll check that out when I have a bit of time, thanks!

    Bookmark   June 24, 2014 at 12:29PM
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Pretty much! You're welcome. When you compare a group of seedlings, you can pretty well tell which are quite good and which are "also rans". Post the "also rans" freely to share your progress, but play the really good ones very close to your vest until they show sufficient warts to prevent their success. Those make excellent examples of how even excellent ones can miss. Good luck! Kim

    Bookmark   June 24, 2014 at 1:20PM
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