Plant Breeders Rights

Plant Breeders Rights provides exclusive control by the breeder of propagation and marketing of the newly developed plant cultivar, thereby encouraging further effort and investment that benefits agriculture or horticulture. In the past the breeder has had no control of the cultivar he/she has developed by others breeding with it, but that situation appears to be changing and I think for the good. I note, for example, that New Zealand’s Plant Variety Rights Act of 1987 is being amended in 2004 to provide more protection for the breeder in this respect.

I think of Robert Simonet’s development of his ‘Red Dawn’ x ‘Suzanne’ selection that led to the development of the Explorer Rosa kordesii cultivars. The royalties that Agriculture Canada has obtained through the Canadian Ornamental Plant Foundation for these cultivars will eventually be in the hundreds of thousands of dollars. Yet Mr. Simonet never received a dime for his contribution. Is this fair? Of course this situation is common in the history of ornamental plant breeding, and where do you draw the line who should be compensated? The development of a new plant cultivar can be the result of many decades of work by several people, each person dependent on the successful work that has preceded him/her.

I can only speak for myself, but if I develop a rose breeding line that has potential by other breeders to develop roses that will make them a lot of money I want to be compensated for the work that I have done. At the same time I am willing to exchange rose germplasm that I have developed with others to our mutual benefit. But there would have to be a legal agreement to prevent the distribution of the germplasm that I have developed that other people can profit from. I think it’s time we value our work more and have a more professional attitude towards our rose breeding work.

Okay, let’s debate.

Although on some level I’d like to agree, because it seems to me that breeders ought to be better compensated for their work, I simply cannot quite bring myself to feel the same way. Without knowing how some (such as the New Zealanders) are handling their new restrictions/rights, the kind of idea you propose seems like it would quickly become a nightmare. I’ll just throw this out as food for thought, but here are some arguments, thoughts, and hypothetical scenarios that came to me as I thought about this:

In order to prove that violations of these Rights have even taken place, I imagine that laboratory testing will be absolutely required, and in all likelihood this will obviate the need for expensive, designer genetic markers to be implanted in new varieties to eliminate the possibility of reasonable doubt. It follows that only large, wealthy breeding firms will be capable of protecting their work in such a fashion, not the small breeder. The breeding advantage will then be even more shifted towards those large firms since they can more or less freely use the essentially unprotected stock generated by amateurs and small breeders while their own lines are virtually untouchable. Perhaps there will be an underground market for the removal of designer markers for those willing to pay.

Also, like you said, where do you draw that line for compensation? Is a first generation hybrid deserving of compensation for the parent’s breeder, but a second generation immune to legal questioning? - and so on. It could get stickier, though, if you consider more than just the genes involved.

Isn’t it equally important, if not more so, to prove just how much influence the genes from a “protected” parent had on the physical qualities of the offspring? Given the current state of understanding genes and their expression, is that even possible? Will it ever be? One could argue, for instance, that the contribution of (‘Red Dawn’ x ‘Suzanne’) to the success of ‘William Baffin’ is minimal, or that it really constituted the bulk of its garden worth - it could go either way, really - how do you even begin to objectively assign relative value?

If Mr. Simonet truly deserved compensation for Explorers containing germplasm he developed, you might ask, why didn’t he perform those same crosses himself? Perhaps it is merely the creative moment of combining two parents’ genes at a given point in time, and the genius of selection that may follow, rather than the sum of all creative moments that led to that one (including countless “acts of God” or natural events and contributions from past breeders who cannot possibly receive compensation retroactively), that defines what is truly unique and compensation-worthy about any given plant. It seems to me that is the established treatment, anyway.

Even with a system of gene testing and lawsuits firmly in place for protecting varieties, the immediate result will likely be the increased withholding of parental information, especially by those who cannot afford the expensive protections mentioned earlier. Even varieties with nothing to hide, as it were, may well reveal absolutely nothing about their heritage in this possible future - or maybe the majority of plants will instead contain utterly misleading parental data to foil lawyers and confound breeders.

And what about the work of nature? When a bee (shamelessly) travels from a protected flower to an unprotected one in a breeder’s garden, and the breeder is delighted enough with that open-pollinated seedling’s performance to try and make a profit from it, what then? And on the flip side, since the proposed protection relies so heavily on the value of the hard work of breeders to create unique plants through breeding, would it be legally prudent to try to protect plants that arose from natural fertilization rather than the breder’s hand? Could the doubt over whether accidental pollination might have occurred stymie breeding efforts? Is the climate created by this potentially paranoid atmosphere conducive to the free and uninhibited advancement of new cultivars?

Another thing is, where will the increased costs of added protections be absorbed? By the consumer, in all probability. But raising the price of plants through the roof in order to benefit the breeder may not play very well with the public in the long run.

There are so many more arguments and dangerous questions that could be raised, far too many to comfortably agree to such heavy restrictions or “rights” as a system like that could well impose. Hopefully the kinds of worries this set off in my head are more science fiction than fact, but who can say for sure? What will happen if the worst of it comes to pass?

I tend to agree with Stefan. I will expand on the sharing to include the sharing of knowledge. I got started in rose breeding due to the encouragement of Paul Jerabek who provided me with valuable knowledge and some of his breeding material. Since then, many others have done the same for me. Which was more important to me - the knowledge or the breeding material? It would be hard to answer that question or put a dollar amount on who contributed what. I appreciate what others have freely given me and I try to reciprocate by giving to others in the same spirit. I look at amateurs sharing at no cost (present or future) in the same way as someone volunteering his/her time at a nursing home, hospital, boy/girl scouts, coaching a youth sport, etc. (If you coach someone in a junior league sport, should he/she have to share his/her salary with you when he/she becomes a pro?) I guess I look at sharing knowledge and breeding material as just another form of “public service”.


I believe that the line should be cut where illegal propogation bud or wood starts. Yes, I understand that Simonet’s ‘Red Dawn’ x ‘Suzanne’ has lead to many seedlings that are very good, which has made Agriculture Canada, I imagine, pretty wealthy. But I believe that when one breeder gives germplasm or propogation material to other breeder without any specified restrictions, or release that certain cultivar in commerce to the public, then that cultivar becomes free to use. And as far I know, Simonet’s ‘Red Dawn’ x ‘Suzanne’ seedling had no restrictions because in order for other breeders, such as Dr. Felicitas Svejda who used Simonet’s ‘Red Dawn’ x ‘Suzanne’ cross to produce ‘Alexander MacKenzie’, Simonet had to 1.) give propogation or germplasm, or 2.) or been robbed.

If I had a seedling that may potentially create a lot of money, I would never share with it. And if I did share it, then I should be prepared to accept the consequences from that action. And that means the potential of my cultivar being shared to a 3rd party, etc,. or having seedlings from my cultivar be sold.

Although that doesn’t mean that if somebody shared to you a seedling for breeding to be ungrateful. I’ve recieved roses from a few from here, and I’ve shared a few things to a few on this fourm. Just recently I gave away a Belle Isis x Renae seedling to somebody here because of its unusual foilage. My reason was that it wasn’t nice enough for me to keep… But since I gave that seedling away instead of destorying it, that other person could do almost whatever he or she wants to do with it including releasing resulting seedlings from it… But if I had some contract in writting… now, that would mean something else, wouldn’t it? And if I felt even more stronger about somebody else breeding with one of my seedlings, then I would get a lawyer, pay to make that contract binding, and make sure that any resulting seedlings from my seedlings wouldn’t get released or whatever is stated in the contract…

I got a few roses from breeders, one of which made me promised that if do get a potentially good seedling from his or her seedling, then I would give partial credit. And should that day come, I will honor that other breeder’s wishes, although that other breeder is aware that I am in no way able to control bees or wind, or the popularity of any resulting seedlings. The best thing I could say was that I’ll give credit where it is deserved…

I’m reminded about a case on Judge Judy about a dog breeder. The dog breeder gave a puppy to her friend, a pure breed of something… I think poodle. That friend raised that puppy to a dog, and made a lot of profit by using that poodle as a stud. The dog breeder wanted 3,000 dollars from the other person because her claim was that the puppy had the potential of creating money for her. It was up to Judge Judy to knock sense to her by saying that the puppy was a gift and her claim against that man was moot. And I see it like this way too… Simonet’s ‘Red Dawn’ x ‘Suzanne’ seedling was a gift to the people who make the wonderful Explorer roses.

So what all boils down is that if a breeder is worried about another breeder stealing his or her thunder by resulting seedlings, then that breeder should not set the situation up be sharing propogation material or germplasm, unless there is some kind of binding contract. I know I wouldn’t share germplasm if I had, let’s say, a true blue rose…


Interesting points.

I know of one amateur/semi-professional rose breeder that allows a major nursery with a rose breeding program to use his seedlings in breeding. The agreement between them accounts for compensation. If the seedling produces a cultivar from the first generation of using it in crossing then compensation would be X, if it is two generations from the seedling then Y. I assume the person whose seedlings are being used is not sharing those seedlings with others too freely.

There’s also US germplasm utility patents that are starting to become popular for agronomic inbreds primarily (mainly corn). Such plants cannot be used as parents without an agreement. As part of the U of MN mum breeding program I’m a part of those My Favorite series of shrub mums had a regular plant patent and also a utility patent filed on each cultivar. The utility patent was later dropped on them because of some financial considerations by the inventors, but the purpose was to protect the breeding route which got to each cultivar and using each as parents so for instance Yoder Brothers or other mum breeders don’t just use them as parents and in a short time come up with their copy cat versions. My advisor shared that if the university would have cooperated years ago one general utility patent could have been sought for the unique shrub mum phenotype and breeding route. A cultivar was introduced without the utility patent (or plant patent) and then they needed to go the route of a separate, more germplasm oriented, type utility patent on each new cultivar.

Maybe those with very valuable rose germplasm they are interested in sharing can seek the germplasm style utility patent at least in the US and hope their plants don’t get out of the country. Such patents are much more involved and expensive than plant patents. Perhaps with such protection routes the ones most likely to earn an income from all the effort are the patent attourneys and the US Patent and Trademark Office. Maybe if the rose used as germplasm is unique enough some of the large breeders would be willing to enter into such an agreement. If there are other freely available parents possessing similar traits it would be odd if they would seek such an agreement.



Stefan, with respect I think you are too imaginative in thinking about the negative consequences of the extension of Plant Breeders Rights. The New Zealand Plant Varieties Act of 1987 to be amended in 2004 has a definition for an “essentially derived variety.” It is “distinct from the initial variety in one signifiant characteristic but otherwise has all the characteristics of the initial variety.” How this will be determined we don’t know yet, but I trust there will be an adequate system in place to do so. Otherwise, there is no point in having such legislation.

Mr. Simonet freely gave his ‘Red Dawn’ x ‘Suzanne’ selection to Agriculture Canada for use in a rose breeding program, and did no expect anything in return. I’m just giving this as an example of how other people or institutions can profit enormously from the work of a previous breeder. And I think it is time that this situation changes to the benefit of the breeder.

Professional rose breeders already withhold or provide misleading information on new cultivars they develop, so I don’t think this will be a factor if Plant Breeders Rights are extended.

Yes, there may be increased costs to the consumer but in the long run he/she will benefit by the breeder having more money to invest into breeding better roses.

I agree with Enqrique that if valuable germplasm cannot be protected from other people exploiting it, then it shouldn’t be shared. It is no different than inventing something valuable and then giving it away. Again, rose breeders should value their work and have a more professional attitude towards it.

Mention has been made of the profits Agriculture Canada made on Red Dawn x Suzanne offspring. I thought that Explorers like William Baffin were public domain plants. I realize that the situation now with new plants is different. Am I wrong in this long standing belief?

Paul, thanks for your comments. I was merely trying to be cautionary by exploring possibilities in a rolling, gut reaction kind of way - my real point is that I feel it would be, at best, unwise to accept any change without envisioning the worst possible outcome first. Nothing I said was meant to be an accurate portrayal of what would invariably happen if certain changes occurred, and it’s entirely possible that extending breeders’ rights would have only positive results. I believe that regardless of the eventual outcome, it is essential to know exactly what the scope of the law is, how the legislation is to be enforced and then to plan for any possible negative consequences before diving in.

The NZ act you describe sounds like more of a baby step in extending breeders’ rights, one with well-defined limitations. If I understand correctly, it would basically govern point mutations (sports) and controlled alterations of single phenotypes, right? At least that would not be too difficult to defend in court, not like ordinary improvement breeding where the offspring would probably be far more variable and perhaps contain only certain superior characteristics from any given parent.

I believe that most professional breeders probably already do have a professional attitude with regard to their creations. It follows that many amateurs may have a very different attitude, yet they do not necessarily value their work any less just because they aren’t seeking their fortunes in it. There is nothing wrong with that in my opinion.

David’s point about contemporary agreements between breeders is quite interesting; it makes me wonder if it is worth the effort to enact legislation to govern something that breeders can already control themselves through established protocols. I suppose the question to ask is, what can and cannot be controlled without creating new laws?

Paul, what you said about breeders needing more money to invest in their efforts is quite true - but I doubt that consumers will see it that way each time they reach for their pocketbooks without an advertising campaign to change their attitudes and beliefs. If Microsoft suddenly raised its prices to pay for the swell of lawsuits it was facing in the recent past, I don’t think the public would have said, “Yes, it’s expensive, but I know that extra thirty dollars is going to make the next version of Windows even better!”. The consumer mind just doesn’t work that way. In fact, I’m guessing that the average rose purchaser (at least the average American rose purchaser) probably thinks rose breeders make quite a killing.

I also believe it’s important for for-profit rose breeders to guard their work (germplasm, information, or otherwise), depending of course on their intentions for it. Yet the whole point of breeding roses for profit is to sell them to consumers, at which point the superior genes are thoroughly distributed along with the product. That is where the real difficulty of protecting breeders’ work lies, with the end user. There, too, the solutions for keeping the work safe from further improvement are most difficult to enact, to enforce, and to pay for.

Anyway, all of the above is simply my own small opinion - everyone is free to agree or disagree with any or all of it. I’m most interested in seeing people thoroughly discuss their feelings, and it doesn’t bother me in the slightest that I may be completely wrong - at least it will stimulate conversation!

I believe that if you develop a hybrid which you view as having value as a stud, then allowing it into the hands of any other person without a written contract stating terms of usage is an act of sending it into the public domain, and as such you expect nothing in return. If you have something you value and want compensation for its use, then only those who agree to and sign a contract may have it.


So, what youre saying is that under this regulation someone like Kordes would have profited a great deal by the mass sales of the Carpet series (Noack)? I forsee this as detrimental especially concerning the declining sales as it is. First, I can remember when premium roses were 8$/each and Im not even that old. There is no way inflation alone can cause that much of a markup. Second, inferior roses to what could be marketed will be offered because corners will be cut to maximize financial efficiency. The nursery industry is very well known for doing this. Last, this could be detrimental to “new blood” in the process. Why breed roses when other ventures are less strict? Afterall, this is still an agriculture based business. Not electronics.

Quite honestly, I think this is all unethical. Patenting alone is a migraine in itself. I would rather see an overhaul of plant patenting into it’s own entity to regulate plant breeder’s ethics into good business. But that’s my ideal.


I was thinking about this some more and a question raised. How would such an act be upheld across political borders (ie USA to France and vice versa). btw, I used the Carpet series as an example because a ton of non-rosarians grow this series on their properties and it was a good example towards ethics versus their trust in an industry.


Henry, yes most if not all the Explorer cultivars are public domain plants. However, several of the Parkland cultivars have plant patents. The Explorer and Parkland cultivars are registered with the Canadian Ornamental Plant Foundation and member nurseries are obligated to pay a royalty on each plant that they propagate. This is done on the honor system, because as far as I know nurseries cannot be legally enforced to pay royalties. But strict monitoring by field representatives means that most nurseries pay up.

This paper appears to be addressing the subject:

(I have not seen the full paper just the abstract.)


Here’s my two cents:

If you release a plant into the public - whether or not that plant is released for monetary gain - it becomes free for the public to use in breeding. If it is used in further breeding, the breeder should be complimented by the fact that others thought highly enough of it to use it.

If you think it’s too special for others to use, keep it around and use it yourself.

Not revealing parentages of a certain rose ultimately hurts the hybridizing world in our common goal to develop beatiful, fragrant, hardy and disease resistant roses.

Requiring monetary compensation for genetic usage reminds me of (among other huge corporate agri-firms) Monsanto’s scheme to rid our land of small farmers. This comment references David’s mention of breeding with corn.

All in all, I must respectfully submit that requiring monetary compensation for genetic heritage is a bad idea.


This is copied from another thread, but I wanted to put my two cents in.

Re: My winter-spring 2000 germination information

Posted by Randy Hughes [email] on Mon, Jan 12, 2004

Henry, That’s great you got hips from Calocarpa x r.nutkana!With a few good tetraploid selections that contain hardy, disease resistant genes from diploid species a breeder might infuse badly needed new blood into popular cultivars.

The two seedlings I kept from that cross have yet to bear a hip but I’ve used pollen from them with some success with I think Tropcicana and Wenlock as seed parents. None have been repeaters and all have rather poor blooms but some have set op hips.

After seeing all the differing opinions on “Breeder’s Rights” I can only say that I’m happy to have shared what little I have and would be more than satisfied to hear of anyone’s good fortune using something I contributed. I think the difference in opinion relates to the “amateur” aspect of my efforts. Folks Like Paul and others I’m sure invest way more time and research into their programs and as such expect more in return, and rightfully so. I enjoy my hybridizing in a strictly amateur way yet at the same time I do have serious hope that someday I might produce something worthwhile that could could benefit other, more serious breeders or maybe even make it to market.

If it weren’t for generous folks like you and David (and many others) when I was beginning I’m not sure I would have had enough success to keep myself interested.

Thankyou for the news.




I do agree with your words. Breeders Rights are a necessity but I do not think they should be extended to the progeny.

I do not beleive to be good that a new breeder should be obliged to begin with species.

On the contrary my opinion is that the laws permiting the property of a genetical modification are bad. By this way any (…large) compagny can claim exclusive property rights on genetical material found in nature.

Any restriction to breeder’s access to genetical resources can only be detrimental to the general public as well as the breeders and can only favour further the larger Cies.

That’s my two cents


I know if extensive breeders rights are enacted, equivalent to the time limit of a patent, I’ll stop plant breeding. It will force too much power and control into the hands of corporations and agribusiness.

I always found the Canadian farmer story (I could be wrong as I have not followed the story closely) where he simply selected plants from his field that were pollinated by a nearby field of GM crops and then he selected the plants for chemical resistance. From what I know, he was found guilty of “stealing” the agribusiness’s genes. IMHO they were guilty of allowing their pollen onto his field.

Chris Mauchline

Mike, if you are referring to the New Zealand Plant Varieties Act it is effective in other countries through the International Union for the Protection of New Plants (UPOV). Most developed countries are members of this organization, so therefore there is excellent protection of patented plants of any country.

I note that at the 1991 UPOV convention breeders rights were extended to “essentially derived varieties.” There has already been one court case (in Holland) regarding an"essentially derived variety." It involved a sport of a Gypsophila cultivar, and DNA testing was done to determine if it was one or not. I think it is safe to say that it won’t be the last court case involving an “essentially derived variety.”

Pierre, I’m intrigued with your comment "Any restriction to breeding access to genetical resources can only be detrimental to the general public as well as the breeders and can only favour the larger Cies (companies?) Yes, of course! It’s called business. I think of the situation in Canada, where Agriculture Canada has a large resource of rose germplasm they have developed and are very protective of it. If they were interested in developing a lot of high quality roses for northern (and other) gardeners, they would distribute some of their breeding lines to other research institutions and private plant breeders. Because much of the funding for their rose breeding programs is from the nursery industry, the priority is to produce new plants for the nursery and landscape industry. Developing new roses is secondary. On the other hand, without private funding for these rose breeding programs we wouldn’t be getting any new rose cultivars at all from Agriculture Canada. These new rose cultivars, of course, can be valuable to use by amateur breeders. I doubt Agriculture Canada has plans for extended breeders rights for these cultivars but that remains to be seen.


Extended breeders rights EDV should not lead to exclusive rights of breeding any progeny as it is for GM plants.

If I were Kordes I would try to get EDV for kordesii and its sibs and sue Agriculture Canada! Good business here isn’t it? :wink:)))

EDV concept is intended at having a share of royalties for the initial var breeder from

asexually derived progenies that hit the very same market

no more. In example : given a successfull new var without EDV one could grow a very similar mutation (I.e.: different stipule shape) and claim full breeding rights. With greenhouse rose that are grown (I did) by the millions and easily observable it is quite easy.

Yes Cies is for Compagnies. And I think that giving exclusive rights on genetically manipulated plants progenies is a big fault. Mad cow shows us how relying on busyness is risquy.

Friendly yours.


It would be reasonable to expect the breeders who believe they have the most to lose or gain to acquire the germplasm utility patents along with a method of policing their release or to find a method of sterilization or gene confusion (gamma rays) of released roses. Control comes at a price!

If you are an amateur betting on becoming a breeder with the power stated above then you can’t really complain about the breeders keeping you from acquiring their best roses. Your bottom line is the same as (or ethically less than)their’s. Who doesn’t want the credit for bird flu vaccine?

On the other hand, no one will be able to force you to acquire a germplasm utility patent if you don’t have a prospective living or reputation as your goal.

What this thread is providing is a way of categorizing amateur/semi-professional breeders. And as it is said in a lyric out of WEST SIDE STORY, “stick to your own kind”. There is enough information to go around between all levels without self interest allowing a person to cannibalize the work of others and justifying it by calling it something else.