Although I have degrees in botany and plant genetics and have worked with plant breeders for 20+ years, I recently learned that I have been sloppy in my use of plant-breeding terminology.  Part of that comes from the fact that the truly geeky among us (the professors who make the rules) sometimes change the rules without telling the rest of us.  Part of it just comes from learning by hearing, rather than digging-in and looking up the actual rules.  Which, being a lawyer, is something I would never do in other parts of my job.  So this post is my effort to clean up my act as far as terminology goes, and to provide an update to anyone else who has questions about these things.

If you already know this, please skip to any other blog post on this site.  This is going to be way too basic for you.  But since I’m quite fascinated by how much sense this terminology makes, and also by the fact that I didn’t fully appreciate it until now, I’m going to “geek out” on it here.  So read on, or click back to more interesting topics, as you will.

Cultivar is Most Correct, but Why?

Let’s start with the “right” word: cultivar.  It is a portmanteau or, as my kids would call it, a mashup, of the words “cultivated variety.”  A cultivar is a group of cultivated plants that all share the same character or characters that are consistently inherited within the group.  This means that the cultivar is defined by the phenotype, and not specifically by the genotype.  In other words,

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By Dale Hunt – The opinions expressed here are the author’s own and do not necessarily reflect those of his professional colleagues or his clients.  Nothing in this post should be construed as legal advice.  Meaningful legal advice can only be provided by taking into consideration specific facts in view of the relevant law.

Special thanks to TeePublic.com for use of the image at the top of this post.

PLANT PATENTS ARE SURPRISINGLY SIMILAR TO COPYRIGHTS

You’re a plant breeder.  You have a great cultivar that you want to propagate and sell.  You would really like to put it out there so that all your hard work could pay off and so that everyone could enjoy how great your cultivar is.  Of course, you don’t want to sell one plant and then have the buyer of that one plant become your competition by using it to make and sell numerous clones.  You want to be the only one who can sell clones, or you want people who sell clones to have to do so with a license and pay you royalties.  Seems fair, right?

Copyright owners do something similar all the time — authors and artists create things like books and movies and songs.  Then, if people use what the authors and artists created by making copies of their books or playing their songs, (1) they can only do so with permission, and (2) they must pay a fee for doing so.  Copyrights protect against unauthorized copying of an original work and assure that the originator of the work can derive some benefit from his or her creation.

Something that most people (even most patent attorneys) do not know is that plant patents are very much like copyrights for plant cultivars.  Plant patents only cover exact genetic copies (asexual clones) of the patented cultivar.  They do not protect sexual progeny (plants grown from seeds) or plants that are merely similar to the patented cultivar.  So, in that way, a plant patent is essentially a copyright on a plant cultivar.

When people think of a patent,

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By Dale Hunt – The opinions expressed here are the author’s own and do not necessarily reflect those of his professional colleagues or his clients.  Nothing in this post should be construed as legal advice.  Meaningful legal advice can only be provided by taking into consideration specific facts in view of the relevant law.