Where from here ?

This rose has really come into its own this season. The fragrant soft yellow blooms are very long lasting and rain resistant and being held upon a bush with healthy large lush foliage that has shown very good disease resistance. It has quick bloom repeat. Cane hardy to about -32c (zone 4) and being crown hardy in zone 3 … thus, being especially desirable in frigid climates. I don’t mean for the above to sound like a sales pitch … I’m just extremely pleased with this rose!

I’m thinking that I should protect my rights here. I’ve read some of the thread concerning “Trademarking roses” … that does not sound too promising. The rose is now in a few botanical gardens, so it’s already kinda out there, whether that’s good or bad? Indeed, I do desire to get this rose to other cold zone gardeners, though also that I might possibly end up with more than just a passing thanks.


Another shot …

and one more …

Not sure what you should do about trademark and such, but I have to say, that’s a beautiful rose! Well done!

Very nice!


That looks very nice indeed, well done.

Trademarking is pointless, unless you are a big company looking to protect an identity. Patenting is the only way to protect your rights as the owner of the Intellectual Property, but patenting a rose is costly; expect to spend a minimum of 2K per variety. If you can get one of the large growers (Weeks, Greenheart Farms, to name but two) to adopt it and produce it, they will file and pay for the patent themselves. The rose must be an un-named variety to be eligible for patent, bear in mind. These nurseries will grow the rose themselves to evaluate it to determine whether it meets their performance standards before deciding to introduce it, so you are looking at two years at least before they make a decision. However, there are many advantages to going this route, not the least of which is the royalties that will be paid to you for as long as the grower produces and sells the rose.

One other thing: most of the big growers will ask you if you have shared the rose with anyone before approaching them. In some cases, the grower will decline testing your rose if you have distributed it to anyone, botanical gardens included. They view this as releasing the rose into public domain at which point it is no longer “safe” to adopt for commercial purposes. Anyone can sneak cuttings from a public garden and “leak” the rose into commerce. Better to keep a test rose to yourself if you plan on approaching a commercial grower about it.

You can approach some of the smaller “boutique” growers about it, failing the big growers. Rogue Valley Roses is very approachable and would undoubtedly test it for you. Chill Out Roses in Alaska might be an even better choice, as they can test it in their climate to determine suitability for a severe Winter climate.

Good luck,


I think it’s generally a poor time to introduce new roses. You might consider using your rose at least a few seasons before letting it out for testing.

Some wholesalers have their own breeding programs and also have a reputation for using the work of others for their own breeding goals. Though it hasn’t happened to me, yet, that I know of, I do know it has happened to others.

It irks me to no end to think I might have spent several years developing something only to have its germ plasm snatched by those who can monopolize on it by producing thousands of seedlings then selecting out superior descendants.

Sadly, there’s no guarantee this can’t happen to anyone who submits for testing. FYI

That’s some fun looking foliage. What’s the lineage?

Someone just stole my line, but I will repeat, “that’s some really fine looking foliage you have going there,” and nice color, too. What is the lineage?

Hi Terry,

I definately agree with Paul’s advice on patents really being the way to offer protection and potential for royalties. People can use other names to get around the trademark issue. There are two entities that can submit a patent from my understanding- a licensed patent attourney and the breeder. I submitted my own patent for Candy Oh! Vivid Red. I am in the process of waiting for the examiners response. The submission fee was $360 and there will be a follow up fee. Harvey Davidson was a great encouragment to and helped me understand the process and be less fearful of it all. Anne Grunberg (I think that is her last name) at the patent office was kind to help me understand the forms and process better when I called her.

Patent attorneys give the breeder forms to fill out for taking botanical data and background on their own plant anyways or if they are plant lovers like Penny Aguire or Anne Wiley may ask for plants to grow in their garden to take the data themselves. These people do a great job no doubt and have a lot of experience. However, a breeder can read the instructions for the forms, fill out some botanical data looking at the types of things others take data on for roses, take and mount two copies of pictures, and submit the package with a check. There’s no magic to it.

For patents we can have an assignee. Many times nurseries introducing the rose would be or want to be the assignee. IN essence from what I understand they then are assigned or have control over that patent. If they decide not to offer our rose anymore, they can keep us from finding alternatives if they want to. Harvey Davidson encouraged me to not have an assignee. THe patent can be in our name. We can then make a license agreement with nurseries to sell it. THis is separate from the patent. We can give them an exclusive as long as numbers are such and such and if not have an out to go somewhere else. We don’t have to give anyone an exclusive if we don’t want to. Nurseries do like exclusives or to be assignees of the patent because then they can feel more confortable in putting marketing dollars behind it because either directly through their sales or people they may sublicense to grow it they have a chance to protect their marketing investment and recoup costs.

Some nurseries have a strange royalty split thing going on. For instance, they tell the breeder the royalty per plant will be say 60 cents. One third goes to the breeder, one third goes to the nursery for their kindness in introducing it, and another third to help pay for marketing. Some split it 50 / 50 and don’t separate the marketing fee directly. They charge the 60 cent royalty to the final customer as the royalty fee. THis seems odd to me as they are making money off the production and sale of this cultivar separate from the royalty and have an exclusive on it. If they pay for the patent upfront and do it for the breeder, the breeder usually doesn’t see royalties until the patent cost is fully recouped and they don’t share the cost of the patent. They then are the assignee of the patent. The better job they do at marketing a good plant the more people would want to buy it and the more they will make from just general sales, so all this extra splitting of royalties seems to be a way to gain extra money for the nursery even when they have an exclusive.

There are different nurseries with different models of income stream for sure. Anyways, we can keep the patent cose relatively low if we want to do it ourselves and that can give us protection and options, especially if we don’t have a assignee.


Don’t quote me on this… because I am still trying to suss this whole patent thing out before I have anything worth patenting… but I was looking through the Australian PBR site (plant patents) and it seems to me that their process allows for a gradual payment so you apply for one section and pay for it and then progress through until you have gone through, and paid for, the whole process. I thought this was pretty good to try and spread out the payments and make it easier for backyarders like me to protect anything they make that is worth keeping and using. Does the U.S. system have anything like this in place? I noticed David said there would be ongoing costs after the initial $360 so I figured there is that option… is that right?

Terry, I absolutely LOVE your yellow rose!

I wish I could only smell it’s fragrance.

Hi Terry, very beautiful rose and the foliage looks very healthy too! What is the parentage?

Jim Sproul

Thanks all for the favorable comments and those who had taken time to pass along detailed information, I really appreciate the knowledge and suggestions.

I often stand in front of this rose and ask, are you for real? I’m dealing with a real tough climate, one in which there are few high quality roses capable of surviving the very long and at times bitterly cold winters, repeating yellows are basically nonexistent in zone 3.

Yes, I’d want to oversee rather than just receive a passing thanks on this one. I’m not the greedy type (only when it comes to acquiring more plants, lol) … but, heck, I would not turn down the possibility of royalties, they’d be helpful in advancing my small scale breeding program …

As for the lineage … it slips my mind, lol … it’s 'Morden Sunrise x ‘John Davis’ Indeed, yes, it has very good foliage, last year I had noted just how healthy it had remained.


Terry, it’s a lovely rose, and I don’t think you would find anyone here who would call you the greedy type for wanting to receive some kind of reimbursement for your work. It takes a long time to make the crosses, prepare the seeds, raise the seedlings, cull them and trial them, line breed, etc… why shouldn’t you seek some kind of recompense for your work? :slight_smile:

Thank you Simon, I appreciate your words. Indeed, over the years I’ve raised many thousands of seedlings, though only a handful of which I’d consider of high caliber, thus these are cherished. Often just when it looks like something really good has come forth, it later proves to be lacking in health … or the petals drop in three days … or the foliage is too small … we all know how that goes.

It’s discouraging to know how cautious one must be in protecting the rights to a plant. I am working on producing a line of very hardy roses, one in which expands the color range and form of those that are capable of enduring zone 3, I’m getting some encouraging results. Yes, there’s much time and energy dedicated to this and I’d like to see a bit of a reward for all that is put forth … I’m glad for the support of this forum.


Hi Simon,

From my understanding I’ll pay the second and final installment after the examiner gets any corrections or clarifications completed that are needed and things are finalized. I haven’t come across a piece of information on the PTO site that there were installments beyond this initial application fee and final fee. Perhaps if one goes through a patent attorney and they charge an extra thousand or more dollars to fill out and submit the paperwork I suspect they can choose to work with a person to pay in installments. I look forward to hearing word back on the rose patent. It’s almost a year now and that seems to be the length of time that is common before one hears back. Initially when I submitted the application someone confirms all the parts are included and if they are not or not done so in the right format they us you know and we can submit the section again. Then the patent examiner looks closely over the patent and comes back with questions within a year or so.

For the heliopsis patent on ‘Tuscan Sun’ I have with my previous boss, we went through Plant Haven to introduce it. THey connected with Proven Winners to produce and sell it. I wrote the botanical description for the patent and Plant Haven helped with the paperwork and somehow submitted it with I think help from an attorney. In the end it cost us about $1200. After a year we got back some details that the patent office wanted clarification on and then things were finalized.

Patents are costly and offer protection and with us doing them ourselves costs only about a quarter of typically having someone else do it for us. It has been satisfying trying to do it myself and I am looking forward to it being easier in the future with all the forms in place and a framework of botanical data to take ready to go.

I suspect if we can take the initative to get our own patent we don’t have to be so concerned with having a nursery ready to introduce our plant in a big way and when things are submitted who we distribute it to or have it trialed by. If there is a rose we really believe in we can secure the protection and work up the interest by getting it out there. I suppose having a large nursery in place willing to promote a good rose is the best route, but there are other avenues to use too. Perhaps in the long run having a couple or few smaller nurseries and royalties coming in, the patent will eventually be covered. Maybe before the 20 year patent life the rose will catch on and its unique features widely known and more nurseries would like to grow it.



Update on patent process.

I got the paperwork yesterday from the Patent and Trademark Office. There was not clarification that needed to be made which is nice. I just need to send in the form with money. It is more expensive in the end than I expected. The issue fee is $595 (even with the small entity status, double without). So, with the previous $360 applicaiton fee it is approaching $1000 even doing it on one’s own. It is better than $3000! I have three months to submit the payment. I wasn’t sure of the issue fee and thought from what I heard everything would be about $500. I guess just the issue fee is about $500 and that is separate from the application fee. I was thinking of moving ahead on a patent of another rose I believe in but don’t have a market for yet and want to share more widely with others, but I think I will hold back.




The most cost effective way to protect your rose is to become a member and register it with the Canadian Ornamental Plant Foundation. First though, it has to be named and officially registered with the American Rose Society before COPF will accept it. COPF can’t legally provide protection for plant materials registered with it. However, many nurseries in North American and Europe are COPF members, and through this organization they pay royalties to breeders when they propagate COPF registered plant cultivars and market them.

I’ve heard current cost to patent is about $1200.00 to do it one’s self, and about $2000.00 to have a plant patent attorney handle it.

$2000.00 is the price I got from plant patent attorney and former ARS President, Vincent Gioia, about a year ago. He used to handle patents for Ralph Moore among others. He lives not far from me.

It’s best to be sure one’s cultivar is worth patenting. I know from my history in the nursery industry that it can be expensive to police one’s patent rights. Having a patented plant is one thing. Proving damages is another. It’s near impossible to prosecute small offenders. It just isn’t cost efficient.

Unless hundreds of thousands of units are involved I can’t imagine patenting is worthwhile. I think that’s why we see fewer and fewer of even the large companies bothering to pursue it.

Link: www.plantpatent.com/