OK, I confess, I’ve been to Lowe’s again. [Brits: this is a huge B&Q-type place, often decried by serious plants people.] I was there to by timber, OK?, but I took at the plants while I was there. What did I find?
I found a batch of the pretty Japanese Painted Fern, Athyrium niponicum var. pictum, with a big colorful label. And right after the name were the letters PPAF – Plant Patent Applied For. Well, they may have applied for a patent but they must know perfectly well they won’t be granted it. Why waste their money? Perhaps to put people off propagating from their stock? Why bother?
If a plant is patented then anyone except the patent holder must negotiate a license and pay a fee to propagate and sell the plant - plant patents are intended to ensure that anyone who spends time and resources developing a new plant is properly rewarded. But this plant fails on a number of Plant Patent rules published by the US Patent and Trademark Office. A plant can only be granted a patent if:
- “the plant was invented or discovered and, if discovered, that the discovery was made in a cultivated area.” – Failed: this is a wild, naturally occurring fern from south east Asia.
- “the plant has not been sold or released in the United States of America more than one year prior to the date of the application.” Failed - I’ve known this plant for thirty years and I’m sure it’s been around a lot longer than that. It was even chosen as Perennial Plant of the Year on 2004!
- “the person or persons filing the application are those who actually invented the claimed plant; i.e., discovered or developed and identified or isolated the plant, and asexually reproduced the plant.” – that would be God. Failed again.
- And so on…
Oddly enough, it turns out that there are no applications pending for patents on athyriums… So it looks as if there never was an application – just the letters on the label.What are they playing at?
The truth is that the wild form shown at the top of this page has been surpassed by superior selections made in gardens – some of which, like ‘Silver Falls’ are patented, and some of which, like ‘Wildwood Twist’ are not. Take your choice.
Photo of Athyrium niponicum var. pictum distributed under the Creative Commons Attribution-ShareAlike License 2.5