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Trademarking Trees

Triangle Gardener podcast logoEach year has its new must-have plants. But those plants can take decades to go from idea to the perfect new plant for your garden. Prominent plant breeder, Dr. Denny Werner, explains how he created the popular ‘Ruby Falls’ redbud tree and gives us a sneak peak at his latest creation.  He also explains why some plants are trademarked or patented and how that supports future research.

Story Highlights
  • Prior to Dr. Werner’s breeding project, begun in the 1990s, all new redbud introductions began as a chance seedling.
  • Patenting protects an innovative new plant and trademarking protects the name of the plant
  • A portion of the sale price of plants released by NC State goes back into new plant research

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Thank you to Jenkins, Wilson, Taylor & Hunt, Patent Attorneys for making this story possible.

 

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As a service to our podcast followers, we offer a complete transcript of this show.

DAN

Welcome to the Triangle Gardener magazine podcast. We’re your guide to enjoyable gardening in North Carolina.  Today we begin our series on where plants come from, with our first episode  – Trademarking Trees. I’m your host Dan Mason.

DENNY

But its pretty common in the horticulture industry now that a plant not only gets trademarked but it also gets a plant patent. So just like any other intellectual property, plants can be patented like any other invention in this country.  

DAN

But first a word from Jenkins, Wilson, Taylor & Hunt who made this story possible.

Located in the Research Triangle area of North Carolina, Jenkins, Wilson, Taylor and Hunt is an intellectual property law firm that focuses on providing patent and trademark legal services to corporations and research universities worldwide.  You can find out more about the firm at their website, jwth.com.

You can find more of our stories on our website – trianglegardener.com.   Keep up with us on Twitter, too.  Our handle is @TriangleGarden.  Now, on with today’s story….

LISE

I’m tempted by new plants.  Those lists of hot new plants or articles entitled “top ten plants for your garden” always get me wondering if I could find a spot in my small garden to try out something new. The horticultural industry relies on people like me.  But I’ve got to wonder, where do all of these new plants come from anyhow? And how do they decide what’s going to be next year’s big seller? I talked to one of the top plant breeders at NC State University.  He’s making some of those new plants I just have to have.

DENNY

My name is Denny Werner and I am a professor in the Horticultural Science department.  I have been in the dept since 1979.

LISE

Dr. Werner leads a breeding project that has introduced popular new varieties of buddleias and redbud trees into the market. His team uses classic plant breeding techniques.  They look for plants with desirable traits and cross breeds those plants together.  Then they sift through the resulting progeny and screen for the desired traits. This process may go through multiple generations to achieve the perfect plant. Its labor and time intensive — especially working with trees.  I had to ask what motivates him to tackle such long-term projects.

DENNY

That’s a good question actually and if you think about redbud its particularly relevant question.  Because, before I started breeding redbuds by making controlled crosses and hybridizations if one looked at the range of cultivars of redbuds in the trade prior to the late 1990s, I think in every case every variety of redbud that was in the trade was found as a chance seedling.  Either in a nursery setting or out in the wild. I always like to say that Mother Nature is the best plant breeder because there’s always variation out there that arises and if people observe that variation they can release a variety just based a selection from the wild or from a nursery setting.

LISE

While we talked about many of the different plants he had worked on, Dr. Werner explained how he and his research associate, Lane Snelling, developed the popular ‘Ruby Falls’ redbud tree.

DENNY

Perhaps a better example might be the weeping purple variety that we released called ‘Ruby Falls’.  Its been in the trade now for about four years.  ‘Ruby Falls’ is a cross of a variety called ‘Lavender Twist’ —its a green-leaf weeping form.  Crossed to ‘Forest Pansy’ which is the purple leaf, non-weeping form.  And Lane and I both thought that developing a purple leaf weeping form would be desirable and we thought would resonate with the industry and the homeowners.  So that cross was made back in the late 1990s.  We had recovered the F1 trees from that cross.  When we say “F1” we are referring to the progeny that result from that original cross.  We took those 23 F1s, in that case, 23 individual trees took those to the Sand Hills research station and we grew those in isolation.  It took three, almost four, years until they flowered and we got the F2 seeds.  So the F2 seed is the seed that is produced on the F1 trees.  We then grew out those F2 populations and selected for the purple leaf weeping forms that segregated out in those families and we ended up with about 45 purple weeping trees.  Then it was just a matter of winnowing those 45 down to about 4 selection that we thought were the best out of that family.

LISE

I was talking to Dr. Werner in a greenhouse on the NC State campus.  Its a big operation. Lots of different buildings.  Students, technicians, and faculty were busy working on plants I recognized, and some I didn’t.  ‘Ruby Falls’ was released as a trademarked and patented plant and some of that revenue goes back to the University to help continue this research. I knew that the University often protects plants that faculty invent and I asked Dr. Werner to explain why.

DENNY

TM stands for trademark.  Or in the case of plants, you’ll see an R with a circle around it, that’s a registered trademark. Essential what that means is that particular plant, that particular variety not only has a variety, what we call more properly call a cultivar name in horticulture.  It not only has a cultivar name it has a trademark name.  And there are a number of reasons in the trade that people assign both a cultivar and a trademark name to a plant.  I don’t particularly agree with it, and it would take a long time to explain why people trademark a plant or chose not to trademark a plant.  But its pretty common in the horticulture industry now that a plant not only gets trademarked but it also gets a plant patent. So just like any other intellectual property, plants can be patented like any other invention in this country.  So there’s two ways of protecting a plant, one can get a plant patent and one can also assign a trademark name.  A plant patent protects the plant and a trademark protects the name of the plant.

LISE

Does that mean if I purchase a plant which the university has released some of that revenue goes back into more research?

DENNY

Yes, the university does benefit from my work and the work of all the plant breeders here at NC State.  If we patent a plant, or in the case of seed propagated plants, for example peanuts and barley and grain crops in crop science, they go through a process called plant variety protection. Its similar to plant patenting but a little different.  But in the end, a patented plant generally generates royalties.  So NC State contracts out with a licensee who is then responsible for marketing, propagating and marketing that plant in the industry. The agreement general stipulates that for every plant that is sold a royalty is collected on that plant by the licensee and that royalty comes back to NC State University.  And then, of course, that royalty is then disseminated to different entities in the college of Ag & Life Sciences, and even outside the college of Ag & Life Sciences.  And some of that revenue does come back to the plant breeding program that actually generated that plant.  So royalties are actually important in the sense that it generates revenue, it comes back to the program, that allows that program to keep developing new plants for the future.

LISE

As a plant breeder do you step back and look at trends in our population and try to project what kind of gardens people will want in the future?

DENNY

I don’t too much.  There’s lots of prognosticators out there in the horticulture industry trying to predict what is going to be in demand five years from now.  What is the millennial generation going to like on their patios or in their landscape now or ten years from now.  I tend not to pay too much attention to that because it often become a distraction.  I guess at the base level I ask myself, “would somebody want to plant this in their garden or in their patio?”  I guess I continually hear that homes are getting, backyards are getting smaller, homes are getting smaller.  People want smaller plants and perhaps I’ve responded to that a little bit.  But I wouldn’t say its a driving force in what I do.  Because I’m not only breeding plants for NC or for the Southeast or for the US, but good plants have an international reach now too.  ‘Ruby Falls’ is in Israel.  ‘Ruby Falls’ is in Japan.  ‘Ruby Falls’ will be in Australia pretty soon.  So what their population is going to want to have in their garden ten years from now I have no idea.  So in a sense I like to put good plants out in the marketplace and I guess in a way that they behave well.  Just like your children when they graduate from high school and you send them to college, you hope they perform well and you hope they behave themselves.  I hope my plants do the same thing.  I hope they perform well in the garden centers and I hope no liabilities arise that I did not perceive that might limit their utility in the landscape.  So releasing a plant from a breeding program is a little like sending your kids off to college.  You just really don’t know how its going to work out.  But you hope it works out well.  I don’t respond too much to the predictions of what the horticulture industry will be 5, 10, 15 years from now.  Its always hard to assess that.  And we’re working in such long.  Plant breeders are working in a long term time frame. And what might be true now may not be true 15 years from now.  And we can’t turn around on a dime.  Its not like I can shift gears mid way and say, “Oh, I need to develop this.”  Its going to take 10 years to shift gears and start to develop new plants if you change your priorities and if you change your goals.  Its a long term business and you have to think long term.

LISE

You talked about children.  I want to ask you a question like picking out your favorite child.  Which is your favorite plant that you developed?

DENNY

That is a difficult question.  I really enjoy ‘Ruby Falls’.  I think I’m very heartened at the success of ‘Ruby Falls’.  I think ‘Ruby Falls’ is a beautiful landscape tree.  I’ve never really heard any concerns or criticisms of it from the industry or from people who grow it.  But on the other hand, it may not be my favorite tree two years from now because I have a greenhouse full of new selections in here that are pretty exciting.  Very, very exciting.  And that may change my perspectives here in a few years.

LISE

Can you talk to me about the plants were are looking at or are they super secret?

DENNY

They are relatively super secret.  Of course we have to be concerned as plant breeders, we have to be concerned about revealing too much about what we have in the developmental stage or the selection stage.  I will just say we are trying to develop new forms that have unique color combinations that we’ve never seen before in redbud.  Hopefully develop a redbud that for the entire growing season looks like it has fall color.  Pretty remarkable color combinations.  We’re still trying to develop weeping forms in different color combinations besides the purple weeper that we have.  We’re trying to develop other color combinations in weeping.

LISE

Dr. Werner’s super secret trees were pretty amazing.  I’ve never seen anything like them and I can’t wait to get my hands on one.  Our conversation made me realize what a long, complex, and costly process it is to bring new plants to the market.   It gives me a new appreciation for newly released plants. They may have been decades in the making. Somehow that makes me want them all the more. I’m Lise Jenkins.  This is the Triangle Gardener.  We’re your guide to enjoyable gardening in North Carolina. You can find this and past episodes of our podcasts at the Triangle Gardener website, trianglegardener.com.