Interesting article about patent & Ralph Moore's quote

Plant Patents
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The link below might not work, but when I goole “rose patent” there’s an article by Daily Yonder that pointed out patents or ownership suppress new innovations, and give rise to larger nurseries. http://www.dailyyonder.com/rose-history-punctures-patent-argument/2011/05/06/3313 The article pointed out that most new roses come from Europe, where there’s no patent … versus a decline in American rose introductions since patent started. There’s Ralph Moore quote: ““None of us own anything,” Moore said. “We’re only trusted with it."

I didn’t know that the cost of patent is around $2,000. The article has a picture of patented Bridal Pink rose. It’s the most miserable, pathetic rose in my garden. I bought Bridal Pink as a gallon-size own-root. It’s a florist rose bred by Gene Boerner, 1967. It has needle-like sharpest thorn, thin-lettuce like leaves that can’t take the sun, the bunnies at the entire plant. It was healthy at first but came down with BS in our week-long constant rain. It smelled good at bud-form, but nothing once opened. The color is ugly washed-out pink. The article is right that SOME patented roses are diseased pathetic plants, all hyped and no substance.

What are your thoughts on patent and patented roses? My thought is: it benefits the lawyers, but no one else. My sister, who is a patent lawyer, makes more money than M.D. siblings. That brings to mind Monsanto and their zeal to patent every plant.

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Sounds a bit like a flawed study. There were only two large companies with a formal breeding programs for the last couple of decades in the US … Jackson & Perkins and Weeks. Seems reasonable that they would not introduce a lot of roses in one season. Now, of course, the breeding operations are closed due to bankruptcy of the companies.

Smiles,

Lyn

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I’m inclined to think this is a flawed study, as Lyn suggests; just a single snapshot of an entity with many facets.

Consider the following statement from the article:

They found that despite the purported incentives to American rosarians through patents, “European breeders continued to create most new roses, and there was no increase in the number of new varieties per year after 1931.”

It does not take into account the fact that there have been (yes, past tense) at least two hugely successful companies in the US that enjoyed long and prosperous lives, and it is not a coincidence that these were the two that adhered strictly to the innovate-plus-patent paradigm. If this approach to creating proprietary varieties didn’t work, then you can be sure these companies would not have embraced it. The fact that both are now defunct has far more to do with the fickle nature of fashion in the industry, and the general decline in the horticulture industry than anything else. You can’t even begin to blame the patent issue on their demise.

Do more new cultivars really come out of Europe than anyplace else? I find that a suspicious statement and would like to see the raw data to support it. Perhaps Kordes alone tips the scales in Europe’s favor, who knows! All it would take is one or two entities aggressively developing new material to make it appear as though their region was far more successful at the process, but to conclude that the patent system is a pivotal factor is supposition and nothing more. Two or three data points per continent is not enough data to draw conclusions that suggest who is more successful than who, and why. Of course, with both Weeks and J&P gone, there are no full-sized corporation type nurseries doing R&D in roses now! Of course Europe is far more prolific in creating new cultivars, because they still have nurseries doing it!

While I generally feel that patents are unhealthy for many of the industries that employ them (software especially), it is a different scenario entirely when living materials are concerned. Neither you nor I can make endless copies of the latest Intel CPU chip nor clone a word processor from its source code and sell copies to all our friends, but we can make unlimited copies of any given rose, and there is very little to stop us from doing so. But the patent system at least suppresses such activity, and I believe that it discourages commercial nurseries from propagating patented plants without obtaining a license and paying the royalties. That is not an unreasonable application for the patent concept, as it provides at least a partially successful avenue for the developer to generate revenue from their creation.

That said, it is no secret that patents suppress innovation. I’m not even going to start to make the case for it; its a well-documented phenomenon.

Regarding ‘Bridal Pink’: I’ve said this many times in the past: if a rose persists in commerce for more than twenty years (or ten even!), then it must be a good rose in some regions. If it was crap in every garden it was attempted in, it would have vanished long ago. I wouldn’t dare suggest that because many Austin roses are disastrously disease-prone in my garden, that they are going to be failures in every garden, every region; that would not be true.

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Perhaps Mr. Moore’s statements would be better understood in their historical context. A man’s value system is pretty much developed by the age of 21. He reached that point in 1928, about the point of The Great Depression. He was a California, Central Valley, Republican farmer and a very active member of his Presbyterian church. He frequently stated he never created anything, God did. He believed he was given the inspiration to develop the roses he raised, but God created them. He knew and understood patents and often wrote his own to avoid paying attorney fees. He introduced the roses he felt might result in the greatest rewards as exclusives through Wayside Gardens (Linda Campbell, Topaz Jewel, Red Fairy to name a few) as they paid well and on time. He also refused to sell anyone else’s patented varieties to avoid the accounting of keeping up with them and paying anyone else for his efforts.

Not to initiate any politcal debates concerning the issues, but he was also completely against unemployment benefits, welfare, minimum wage, unions and any other form of “legalized welfare”. I was asked on a number of public occasions to monitor him in an effort to prevent those subjects from being discussed and to keep the subject to roses and rose breeding. Even with expensive, dual hearing aids, his hearing was terrible, and he would slip into his “canned speeches” against these political issues when he couldn’t hear people’s questions or was around groups of people he didn’t know and had no personal relationships with. He found it very difficult to hear in those situations, and replaying his comfortable, canned “presentations” prevented him from having to make the effort. I respected, admired and loved him as a friend, mentor and plant genius, but these and several other political subjects could never be permitted entry into our visits.

There are Breeder’s Rights in Europe. A legal patent has traditionally been required to collect anything from the sale of your breeding efforts here. Fortunately, with the loss of the largest players in the American rose industry, a number of the remaining nurseries are willing to pay royalties for new roses, without patents. Our rose business model is evolving.

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Kim, you are right about the bar is being set higher, and roses are better now compared to years ago. Newly bred roses are more disease resistant. I can see the pressure on patented roses to re-coup the cost of the patent. The advantage of non-patent rose is no need to hype up the rose to recoup the cost… it’s sold well because it’s darn good, rather than because of the patent.

For my zone 5a, the easy part is to pollinate and to harvest the hips. The hardest part is to grow roses from seeds into mature plants. It’s the same way with rooting cuttings, it’s not worth it … even if there is no patent, I still buy roses from a nursery since it’s a real pain to root roses in my zone 5a. I have 2 large beds made: one in partial shade (it was brutal to strip off the sod before I knew about black plastic to kill grass), the other in full sun … I still have to order a big pile of sand to rototille into my heavy clay. Then I have to put a brick border in. All that work just to grow roses from seeds… If I don’t have the single-minded goal of fragrant and thornless rose, it’s easier to buy roses from nurseries. Patents benefit mainly the lawyers … I don’t know if small-nurseries benefit from it.

Marin Rose Society stated, “The owner of a rose patent charges the grower a fee or royalty for each rose they sell, usually a dollar or two per plant.” That’s true, during Roses Unlimited summer sale, I paid $10 for Austin rose “Queen of Sweden”, versus $8 for Bohemian Rhapsody (bred by Robert Neil). I regret NOT buying thornless Bohemian Rhapsody, thanks to Austin false claim in his catalog that Queen of Sweden lasts several days as cut flower (shatters in one day), it’s low-thorn (very large thorns). A patent means more pressure to hype up the rose to recoup the cost.

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There are positives and negatives to anything, Teresa. One positive is the reported benefit to Joe Winchell for his first royalty payment for Dolly Parton. For his efforts (and signature), he reportedly received $5,000 for the sale of his first 30,000 plants. Not a bad “reward” for a man in his seventies at the time. If this is your livlihood, royalties are necessary. If not, they are icing on the cake, helping make your “hobby” pay for itself. Restricting production to only those licensed and willing to pay for it may well limit innovation, but it also should help FUND it. No business is going to put costly energies and time into a non-profit effort. To remain successful, cost and profit centers must be identified and then run efficiently. For those of us who love pimping pollen, that is usually its own reward, but if you want new products to purchase and grow, and want the “hype” rose porn to drool over, something has to pay for it. The introducer of any new plant can only control that plant and profit from its sales as long as they can maintain the exclusive on it. Once one stem is let go, it is no longer exclusive. Why should he not profit from the plants others produce from that stem? Whether or not that “hype” actually accurately represents what you may honestly expect from it in YOUR garden, or not, is immaterial. Without the glowing color images and poetic prose contained in the “rose porn”, very few are going to buy the rose. The integrity and accuracy of that hype is another story.

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From the dark side…

We have patented plants since the inception of the Plant Patent Act in 1931 (I think I have the year right). We strongly believe that whoever finds or creates a new invention, be it a gizmo (no pun intended with the rose from our friendly competitor Weeks) or a plant, should be rewarded and protected from unscrupulous people who want to reap the benefirs of the results without incurring any of the costs. Not everyone will agree with this statement, but we have been living by it and making a lot of plant breeders, professional or not, happy with the results. Incidently we did send the $5,000 to Joe Winchel for Dolly Parton, and it could have been much more if he had won the AARS the year it was introduced. Furthermore, we kept sending checks to Joe and his estate for the full 20 years the patent was active.

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I had heard more like $8000 for a plant patent, if you hire a lawyer. It seems like a little much for the average person, and that might be Chicago’s point; the cost prohibits anyone but big companies from patenting plants. There has to be a happy medium. If plant patents cost $50 then everyone and their grandmother would have one or hundreds and the system would be clogged and unenforceable.

From everything I’ve heard, Jacques’ company Star Roses is sure a classy and trustworthy outfit. I think about half of the royalty they charge, which might be from .75 to 1.25, goes to the breeder. I’ve heard (from a marketing company salesman) that Bill Radler gets 38 cents a plant for Knock Out.

Likewise I’d be happy and honored to work with Bailey Nurseries, which seems like a real classy outfit (from my perspective as a wholesale customer.)

The Proven Winners machine, on the other hand, which is associated with Spring Meadow Nurseries, seems to be an example of nauseating corporate greed. As a reluctant wholesale customer of theirs, it seems like they take every opportunity to squeeze a few more pennies out of us. For example, forcing us to pay a premium for branded pots to go along with the plants. I’ve sold Maestro Sedum for several years, and it’s a great plant, and now suddenly it’s a PW and I’m obligated to buy ugly white pots in which to sell them. They automatically add a few dollars to our bill to support some plant breeders organization which I suspect is just a puppet non-profit designed to feed more new varieties into the Proven Winners machine. We are welcome to subtract that donation from the bill, but have to notice it and calculate the new total ourselves…can you imagine how you’d feel if Amazon did that to you at checkout? From what I’ve heard, they nickel and dime their breeders, too, like a large record company might treat a hapless new artist, forcing them to give PW the right of first refusal on future plants and using various excuses to reduce the breeders share of the royalty to mere pennies.

The problem is that a lot of the Proven Winners are actually great plants. They have fought hard to establish their brand, and like Apple are not shy about demanding a premium payoff. As a breeder it would be so tempting to have that PW brand attached to one of your plants and have it be given nationwide saturation marketing.

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Thank you for the kind words here. The total cost of a patent application if you work with a lawyer as opposed to do it yourself will depend a lot on how complete the description for the application is. If it is very detailed and no further questions are asked by the examiner, the total cost is around $3800 including lawyers fee. It can run much higher if the examiner has a lot of questions, which in turn become billable hours. There are “patent agents” out there, basically good para legal people with a lot of plant patent knowledge that can do the work for half what a lawyer would cost. The fixed cost of patent application (what the USPTO charges for the process) is about $1800, if my memory serves me right. Not cheap by any means, but not $8000 either.

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I found the original research from The National Bureau of Economic Research pertaining to plant patent and less innovations in rose. It’s done by 2 economists Petra Moser and Paul W. Rhode. Here’s the abstract of their research:

"The Plant Patent Act of 1930 was the first step towards creating property rights for biological innovation: it introduced patent rights for asexually-propagated plants. This paper uses data on plant patents and registrations of new varieties to examine whether the Act encouraged innovation. Nearly half of all plant patents between 1931 and 1970 were for roses. Large commercial nurseries, which began to build mass hybridization programs in the 1940s, accounted for most of these patents, suggesting that the new intellectual property rights may have helped to encourage the development of a commercial rose breeding industry. Data on registrations of newly-created roses, however, yield no evidence of an increase in innovation: less than 20 percent of new roses were patented, European breeders continued to create most new roses, and there was no increase in the number of new varieties per year after 1931. " The link is Did Plant Patents Create the American Rose? | NBER

Why less innovation with Plant Patent Act 1930? I see the need to keep OLDER patented varieties in the market to RE-COUP the high cost of patent. I’m looking at 2013 Edmunds Catalog, they still have patented Love & Peace (notorious for mildew), and patented Vavoom, still sold at HomeDepot. Someone made this comment about Vavoom in HMF: “This is, in my garden, the only truly, terrifyingly ugly rose I have ever planted. It reminds me of a pit bull. The tiny leaves blackspot and no amount of babying seems to help. Lots of mean looking little thorns.”

Keeping the OLDER patented varieties around longer means less room and less incentive to develop NEWER, and BETTER varieties. The survival of the fittest rule no longer applies when it involves re-couping the cost paid to lawyers in patent process.

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Yes, and no. Older varieties (non patent) are generally kept around because they are the easy ones to produce; they generally sell well at cheaper prices; or they are favorites of the people making the decisions what to produce. Not necessarily that they are better varieties, but they have acceptable Grade 1 rates, meaning they produce at least the minimum percentage of Grade 1, or whatever grade the producer decides is acceptable, when produced by whatever method they employ. If the variety isn’t sufficiently cost effective to produce, it is dumped. Who can afford to produce a rose which yields so low an acceptable plant level, most are tossed?

It often isn’t that they are BETTER, or even “good”. Sterling Silver and Angel Farts are two excellent examples. They yield sufficiently high rates of production and they will sell whenever there is a flower to look at and smell. Their names are sufficiently recognizable to move the plants, but they are not “good” plants, “good” roses, in very many markets. They tend not to be vigorous and in most areas, they require chemical intervention to produce much. Without the revenues afforded by their patents, I seriously doubt there would have been the world-wide, full color advertising (hype) to bring them the recognition they enjoy. There have been MANY more, much better garden plants which haven’t received those levels of “hype” and whose names never enjoyed the recognition these two have and do.

Without the royalties, the only reward the creator/introducer stands to enjoy is whatever he/she can make from producing the plants they personally produce and sell. If the variety is a good one and becomes popular, the competitors are sure to begin producing and selling it, and the benefit of being the exclusive source for the popular variety is lost. Of course, there will be those who produce new roses, but they will only benefit from that pursuit as long as they can reap the financial reward from being the only source of them. Prior to patent protection, there were those who created new roses, but they could never recoup what it honestly cost them to develop the new roses. As long as they desired continuing being rose producers, they remained. Once producing new roses became too costly, they moved on to other product types.

This statement presumes that once a patented variety is produced, the creator is finished and no others will be developed. That doesn’t explain the many hundreds which have been patented, only to fall from commerce within a few years of their introduction, regardless of patent costs and protection. Had it not been for patents, the Meilland family would very likely not have become the powerhouse it is today. Surely the millions Conard Pyle had on hold for them at the end of WWII had an enormous affect on creating what they have become!

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"Data on registrations of newly-created roses, however, yield no evidence of an increase in innovation:

" - less than 20 percent of new roses were patented

" - European breeders continued to create most new roses

" - there was no increase in the number of new varieties per year after 1931. "

There are several false assumptions here. The biggest one is that the number of new introductions correlates somehow with innovation. Another is that plants are (were) like widgets in that biology is (was) not a limiting factor.

Only a handful of breeders have contributed innovations to modern roses. I suspect that Gene Boerner, Wim Kordes or Francis Meilland would have disputed an assertion that patent protection was unimportant to their innovations. Kim or Paul B. can tell us what Ralph Moore’s opinion on patents was. Likewise, I wonder if Bill Radler would say that patents are spurring innovation in rose breeding today.

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Moser and Rhode do seem to conclude that patents have not increased innovation–but they do not say that patents have decreased innovation. Not increasing is not the same as decreasing.

In addition, I would offer these thoughts:

***The cost of patenting is not so high that the need to recoup it would motivate a rose company to continue producing and trying to sell a rose when too few are willing to buy it. Maybe someone with knowledge of these costs could provide more specific evidence of this point.

***Nobody forces anyone to buy an inferior rose. ‘Love & Peace’ and ‘Vavoom’ are in commerce simply because people want to buy them, not because a company is trying to recoup patent costs. If selling these roses did not yield profit, no rose company would be producing and trying sell more of them instead of encouraging and rewarding the creation of newer and better varieties.

***What about the evidence on HMF? You say that ‘Love & Peace’ is “notorious for [powdery?] mildew”–but a good many people have found that ‘Love & Peace’ is above average in disease resistance. Comments on HMF are uniformly positive for L&P. The negative comment you found on HMF for ‘Vavoom’ is the only completely negative comment, and the rose is clearly liked by a good many users of HMF. The preponderance of evidence from HMF does not suggest that either of these roses is inferior and is being kept on the market to recoup patent costs.

***If, as you suggest, the presence of patented but inferior roses in commerce “means less room and less incentive to develop NEWER, and BETTER varieties,” it seems clear that the vastly larger number of no-longer-patented roses sold at lower prices would also clog up the market and mean “less room and less incentive to develop NEWER, and BETTER varieties.”

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Ive read patents for over a decade, because Im apparently a masochist. The primary trend I have noticed, with the exception of a few main-stays, are that groups tend to pantent in clusters of time, each with their own story to tell of success/failure. I think trying to see some sort of universal truth from it is silly. It either works for someone or it doesnt, but there is absolutely no need to create persuasions from this.

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The high cost of acquiring a patent really only seems daunting to backyard breeders like us but there is another important option that mitigates the cost of the patent, at least here in Australia. There are initial application fees and then an annual fee to maintain the patent here. You don’t have to pay for the full 20 years up front and if at any time one decides the patent is no longer worthwhile (you have got your pound of flesh from it already), then it can be cancelled and released to the masses. We are seeing this more and more here in Australia. The PBR (Plant Breeder’s Rights), which is essentially a plant patent, is acquired and then only maintained for a few years while it is selling well and then it is cancelled. Breeders like David Austin seem to hang on to their patents to the bitter end, however; PBR held by rose nurseries, whose margins are tighter, only hold them while it is profitable for them to do so. In this respect, I would imagine that patenting would actually increase innovation. If only roses that are worthy and innovative were patented and the patents were only held for 3-4 years then there will be a continual search for new roses to replace them. This short ‘hot’ commercial life of a rose is typical of the trends seen in all areas, especially where technology is concerned. When progress is moving at such a rapid pace and people want the next best thing almost before they have the last one innovation will be the driving force. For rose breeders this means focusing on disease resistance, landscape potential, and novelty flower colours and forms.

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In reading this thread there are some reoccurring words, Lawyer, innovation. In Australia lawyers or not generally considered highly(there is a list from best to worst).

The word “innovation” has evolved with a long list of “new age” words, some I do not even know, I guess you could call it advancement as they change as quick as time. The dictionary is “almost” obsolete prior to printing.

The word “innovation” might be mis-construed, should it not be a business called “marketing” which has gone in leaps and bounds with “modern technology”. These are my thoughts on the subject and could be wrong, but they are my thoughts.

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My main point is plant patent benefits mainly the lawyers, and not the rose industry. My main concern is Monsanto lawyers succeed in their quest to patent every plant that God creates. The study of rose industry is done by Petra Moser, Standford University Economics Department in conjunction with Paul W. Rhode, University of Michigan Economics Dept. Here’s their paper in pdf file:

http://211.253.40.86/mille/service/ers/30000/IMG/000000022328/w16983.pdf

All I know is my sister, a patent lawyer makes more money than her siblings, including M.D’s, and Ph.D’s. Patent law is the most lucrative, triple-digits income. That’s a stark contrast to my Mom and Dad who worked for a Michigan nursery making minimum wage.

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I’m sorry, but you are going to have to provide significantly more data to support that proposal than simply noting how much larger your sisters income is compared to the rest of the family. IMO, that is little more than a single data point in an ocean of data and doesn’t support the idea that patents are detrimental to the rose industry. You haven’t proven anything yet!

Citing Monsanto as relevant to the discussion about patenting roses is very much an apples VS oranges argument, in that Monsanto’s strategy/model is a very different animal and their agenda is clearly very agriculture unfriendly and their goal is to dominate an industry by destructive means, and the rose industry doesn’t come close to that model. If you want to pick a fight with Monsanto’s agenda in regards to patents, that is a very separate and distinct argument.

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I check on the status of current rose industry, here’s a news article Feb. 2012 http://www.sacbee.com/2012/02/12/4256980/roses-lose-bloom-as-hobby-industry.html

Whatever it is, the patent lawyers are not helping the rose industry.

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The rose industry article was interesting to me for what it did not say. It did mention “easy care” but it did not mention the possibility that many gardners were turned off by the dangers associated with the chemical sprays that the rose industry and rose organizations often “approved” (advocated) when growing roses.