Beware ‘New’ Plants In Seed Catalogs; Here Is What To Look For

By Andrew Messinger

Most of the seed and plant catalogs have arrived and they all have one thing in common: They can be incredibly confusing and, to some, even complex.

But before I get to my picks and suggestions for 2017, I thought I’d offer some tips on how to understand some of the catalog nuances and what some of the information really means.

Regular readers know that one of the things that sets me off and into rantland is when I see the word “new” in catalogs. Always look at that word with some trepidation when it comes to plants. A more important word to look for might be “exclusive” because that might mean not everyone is selling it.

More important though, when it comes to seeds and plants, is knowing what’s in the plant’s name. Nope, not talking about Latin or scientific names this time—just plain old English. Here are some simple and not so simple examples that may be helpful in your shopping and this may save you some big bucks and little heartaches.

Let’s use the columbine as an example. You go out into your garden in late May and you see a columbine that has something unusual about it. Maybe it’s the flower color(s), maybe it’s unusually tall or short or maybe it’s got a curlicued spur instead of the simple straight one. Any or all of these traits can be due to a random genetic variation or by a natural hybrid cross with another nearby columbine that resulted in this unusual trait.

Now, if all you see is a flower with a particular hue of yellow you can isolate that plant, collect the seed from it and see if you can duplicate that same color in a second generation. If you can you might decide to call it Columbine Egg Yolk and you can sell it in your catalog using that name. If that yellow flower hue remains stable from year to year and plant to plant, then you’ve named a new columbine. However, you have no legal protection for that name and anyone else can buy your plant, save the seed and sell it under that name or even change the name. They could also call it “new” or “exclusive” unless you trademark that name for that plant and can prove the plant’s lineage.

This is why you can see aquilegia (columbine) chrysantha with any number of names being marketed and—except for some subtle or nonexistent differences—they are all the same. The catalog text might say “rare and found in Martha Finney’s Bismarck, North Dakota, garden,” but it’s still essentially the same plant as an aquilegia chrysantha found a thousand miles away in someone else’s garden.

On the other hand, if you made a very specific hybrid cross between two different documented species of columbines and ended up with a unique columbine as a result of that cross, and if that cross could be repeated over and over ending up with the same unique plant, you could conceivably have a pure hybrid that you could trademark. You might also be able to get a plant patent on it, and no one could legally sell it without your permission. You essentially own the reproductive rights to that plant.

But there is one more possible route to plant fame if not fortune.

If you have a plant in your garden that has a rare and unusual trait as a result of a cross that you made between two plants—and you were able to document that cross—you could conceivably patent that plant. You could also patent a plant that showed up in your garden that had a rare or unusual trait as a result of some genetic variation but—and this is a big but—you must be able to reproduce that plant vegetatively, not from seed. This means from tip cuttings, root cuttings or through a cloning process. If you can document this to the satisfaction of the U.S. Patent Office you could be granted a patent that will protect your plant from others reproducing it without your permission. Every time you sold the right to make another one of those unique plants you would be paid a royalty.

If a plant is patented or if a patent has been applied for, an ethical catalog will note that patent in the plant’s description. It might simply say “patented” or “patent pending,” or include the patent number or an abbreviation like PPAF (plant patent applied for) or PP 23456 (Plant Patent 23456). You’ll see this for most of the new hostas and heucheras as well as the echinaceas and modern hydrangeas, but also on a range of other plants. If you don’t, as in the case of Echinacea Purple Magnus, you’ll know that the plant was grown from seed and thus one purple magnus may not be identical to the next. But, the patented Echinacea Tomato Soup theoretically will be identical no matter where you buy it or who you buy it from because it is a patented plant whose reproduction is legally controlled by the patent owner and each one is an identical copy.

So, if you’re thoroughly confused here’s one thing to keep in mind while shopping. Here I’ll use the echinacea as an example again. Remember that Echinacea Purple Magnus is grown from seed so once you have the plant you can collect your own seed from it and grow your own plants. And since it’s seed grown, it’s relatively inexpensive to produce and in the catalog you might see it selling for $9.95 each. But on that same page is Echincea Raspberry Truffle for $16.50 each. But since Raspberry Truffle is patented, included in the cost is the royalty paid to the patent holder plus fees to the breeder, the propagator and maybe even the distributor. It may also be that the patented plant is more difficult to propagate and very new to the market but it’s that patent that ultimately leads to the big price jump … as well as the qualities that make the patented plant saleable at that price.

The bottom line is that a patented plant should have some qualities that make it special and more desirable than a non-patented plant. In theory, anyway. I’ve purchased patented plants that have been, at best, lackluster. Just because it’s patented doesn’t mean it’s great. I’ve had some dogs. On the other hand, Echinacea Purple Magnus remains one of my all- time favorite purple cone flowers and it’s not patented. Keep in mind also that a trademark and patent are different and a plant can have either or both and it applies only to a name, not quality or true uniqueness. Ultimately though, it’s more likely that the nature of a patent has the potential to make a perennial, shrub or tree extra special.

If you follow this link http://tinyurl.com/zy47rq4 it will take you to the patent of Hibiscus Brandy Punch and you can see what’s involved in patenting a plant. Keep growing.