If you think you've found a new plant variety, the first step is to keep it growing as long as possible, then contact experts who can confirm your findings.
Photo/Illustration: Jennifer Blume
Fine Gardening contributing editor Steve Silk responds: If you think you have a new plant, the first step may be the hardest. Do nothing—other than keep the plant alive—for one year to make sure the new look isn’t a temporary mutation caused by some unusual environmental condition. With perennials, trees, and shrubs, extremes of drought, rain, temperature, or other factors could create flowers that are either double or an unusual hue, foliage that’s larger or differently colored than normal, or plants that are abnormally large or small. The plant may look totally different for an entire growing season, but will then revert to its old self the next spring.
If the new look proves permanent, the next step is finding out if it is indeed a new plant. That means having the plant evaluated. Take pictures of your new plant and send them to horticultural experts who are familiar with the type of plant you have. The Internet is a good resource for finding appropriate people to contact. Emailing your photos will speed up responses. Get a fourth, fifth, or maybe even a sixth opinion. If the consensus seems to be yes and you’re interested in promoting your find, the work on getting your plant introduced is just beginning.
It takes about three years to test-grow the plant in locations around the country, from, say, trial gardens at the University of Georgia to the Royal Botanical Gardens in Hamilton, Ontario. Such testing helps to ascertain a plant’s hardiness and its response to different climatic areas. It may also reveal a plant’s predilection for a certain geographic region. Pulmonaria ‘Spilled Milk’, for example, does well in much of the country, but excels in the South.
In the meantime, the plant should be tested for ease of propagation with methods like tissue culture. However, if you’re lucky enough to have something new in a real collector’s plant, it may not matter if it can’t be propagated rapidly. A handsome sport of Rohdea japonica, for example, that could be propagated solely by division might be worth thousands of dollars per plant to Japanese collectors, and its rarity would ensure the plant’s value for a long time.
Anyway, once the plant is determined to be easily propagated and a proven performer, the next step may be securing a patent to establish ownership of the plant, just as if it were a more conventional type of invention. The patent process requires a thorough taxonomic description of the plant, photos, and legal fees, which alone can run about $2,500 for a United States patent. Patents can be obtained from many other countries as well. Patents are, in effect, legal recognition of the plant’s owner, entitling him or her to a return on the parent plant’s offspring. For every clone produced from a patented plant, the propagator pays the patent holder a fee. Fees range, very roughly, from a couple of cents for an annual, to 15 cents for a perennial, and somewhere between 50 cents and $2 for a tree or shrub. Dan Heims, owner of Terra Nova Nurseries, holds more than 50 plant patents and says a reasonably popular perennial could generate about $15,000 in royalties a year. He figures a new plant has a shelf life of about three years, by which time it’s likely to be replaced by the next new thing. That said, Heims adds that an Australian plant breeder has been a collecting a cool million dollars a year for an especially popular bacopa (the hybrid Sutera) named ‘Snowflake’.
Not every new plant needs a patent. And you certainly don’t need one just to name a new plant. But breeders who spend years of work and thousands of dollars to develop a new plant may opt for a patent as a way to help protect their investment.
Because of the complications and expense of testing, marketing, and patenting, the easiest way for an amateur to get a new plant into the marketplace is to turn the plant over to a company that specializes in developing new plant introductions. They typically would negotiate a fixed price to procure all rights from the plant’s finder or breeder, then shoulder the responsibility of shepherding the plant along the road to the marketplace. This is the route to take if you’re in it for the money and want to go with a company that can market your plant by the hundreds of thousands. If you just want to share a new plant with other gardeners, you could inquire with a specialty nursery like Plant Delights or Heronswood that sells to a smaller, more select clientele.