Roses Puncture the Case for Plant Patents
The fervent experimentalism of rose breeders has put a thorn in the case for plant patenting.
Since 1930, it’s been legal in the U.S. to patent new plants propagated asexually (those not grown from seed but, for example, sprouted from cuttings; in 1970, legal protection was extended to some seed producers, too).
Patenting plant life has been a controversial issue all along, from debates in the 19th century to today’s struggles against seed monopolies. Among many arguments, patent opponents have contended that plants, unlike threshing machines or morning-after pills, aren’t fundamentally the result of human effort. The diligence and genius of breeders notwithstanding, plants are “products of nature and hence… not inventions or, as the Germans put it, Nicht-Erfindungen.”
But proponents of plant patenting, from Thomas Edison to Monsanto, have argued that only legal ownership and the profits that accrue to patent-holders can guarantee horticultural innovation. Plant breeding is a long-term and expensive enterprise, they contend, but botanical novelties, once achieved, are easy to replicate. It’s only fair, patent supporters say, for those who undertake the work of plant development to reap a benefit for their arduous effort.
Without the financial rewards of patent-holding, advocates say, horticultural experts will have no incentive to develop better plant varieties.
A new study produced for the National Bureau of Economic Research presents strong evidence, however, that plant patenting has not increased botanical innovation or discovery.
Scholar-economists Petra Moser (Stanford) and Paul W. Rhode (University of Michigan) assessed the patents-increase-innovation argument by studying the hundreds of new roses registered since passage of the 1930 Plant Patent Act. 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.”
Clearly, something other than proprietorship motivates rose breeders -- and perhaps other botanists and inventors, too.
Moser and Rhode
Backed by the combined forces of agribusiness muscle and celebrity, the Plant Patent Act passed in 1930. (At the time, Edison himself was working on a patent for a new variety of rubber-rich goldenrod—with an eye toward the burgeoning tire industry).
The patent office granted its first plant patent August 31, 1931, to Henry F. Bosenberg of New Jersey for New Dawn, a hardy, repeat-blooming climbing rose. Moser and Rhode found that between 1931 and 1970, nearly half of the 3,010 plant patents granted were for roses.
They concluded that the patent law of 1930 did serve to consolidate U.S. rose production. “Large commercial nurseries, which began to operate extensive mass hybridization programs in the 1940s and 1950s, account for most of the plant patents, suggesting that the creation of [intellectual property rights] may have helped to encourage the creation of a domestic U.S. rose industry.” But business consolidation isn’t the same as innovation.
Moser and Rhode New Dawn proved to be a huge success, a disease-resistant climber that produces flushes of pale pink blooms throughout the spring and summer. But far more patented rose varieties turned out (like Edison rubbery goldenrod) to be flops. Though the Plant Patent Act was intended to be a “wonderful stimulus” to horticultural progress, by as early as the 1940s, leaders of the U.S. rose industry had to admit, “Patented roses have not lived up to expectations.”
So why did plant patents continue? Moser and Rhode surmise that many hundreds of new roses were patented not because they’d proven hardy or commercially viable but because the big nurseries that developed new plants sought to protect themselves from any future litigation. Also, these large enterprises could afford to pay the patent fee -- $200 in 1930, or about $2100 in today’s dollars.
To distinguish between such “strategic patents” and actual horticultural innovations, the scholars looked at changes in the American Rose Society’s new registrations before and after passage of the Plant Patent Act.
Moser and Rhode explain that “Unlike patenting, registering a new plant does not create property rights that could be enforced in court so that registrations cannot be used strategically in the same way as patents. Breeders register the name of new varieties for the simple purpose of naming the plant and for the prestige that it brings to them and the namesake of a rose.”
Looking at new registrations as a more likely measure of plant innovation, Moser and Rhode found that only 18% of newly registered roses were patented between 1931 and 1971. Even more telling, “Registration data show that U.S. breeders created fewer new varieties after 1930 compared with before.”
In other words, there’s evidence that the Plant Patent Act may have served to suppress horticultural innovation rather than stimulate it.
Moser and Rhode further note that even after passage of U.S. plant patent protections, only one of the top ten rose breeders in the world, measured by numbers of new registrations, was from the U.S. -- Eugene Boerner of Jackson and Perkins. European breeders, without the benefit of patents, continued to lead in rose innovation.
During Congressional hearings on the Plant Patent Bill of 1930, advocates introduced a letter from the renowned Luther Burbank to nurseryman Paul Stark.
“A man can patent a mousetrap or copyright a nasty song,” wrote the renowned botanist, “but if he gives to the world a new fruit that will add millions to the value of earth’s annual harvest he will be fortunate if he is rewarded by so much as having his name connected with the result.”
Rose Web Yet new registrations with the American Rose Society, which confer little more than that privilege of naming, suggest that such an opportunity -- and the thrall of botanical experimentation itself – have spurred horticultural innovation more successfully than patents.
Rosarian and centenarian Ralph Moore bred more than 500 new roses and patented many of them. At age 101 he retired, donating all his plants and breeding stock, 80 rose patents, and a cash donation to Texas A&M University's horticultural sciences department.
“None of us own anything," Moore said. “We're only trusted with it."