Let’s Make a Plant – Patenting Nature’s Masterpieces from Roses to Avocados

One of the things I love about working at the Linda Hall Library is the frequency of which I’m exposed, often unexpectedly, to really cool books. One book, or rather a series of books, is the collection of United States plant patents from the very first to the most recent. The very first patent, in fact “Plant Patent 1”, is for a climbing rose (“New Dawn”), applied for on August 6, 1930 by Henry F. Bosenberg of Somerset Rose Nursery New Brunswick, New Jersey.

The accompanying drawing, though an excellent botanical illustration, isn’t – to my mind – particularly spectacular for such a august position as Number 1. But, having taken just over a year to approve, I’m sure Mr. Bosenberg was overjoyed. So what’s so special about the New Dawn climbing rose that makes it worthy of a patent? Something that warrants patenting must be new, not previously disclosed, or in use by the public. Aside from that, it must be a true innovation, and one that has some utility. The New Dawn hybrid is unique and useful principally because it greatly extends the blooming season of its immediate ancestor the ‘Dr. W. Van Fleet.’

The New Dawn was discovered as a sport (a genetic mutation) of its parent. On a molecular level, sports in plants due to changes in the plant’s DNA. For instance, a point mutation is a change in a single nucleotide (the basic building block of DNA) in the plant’s genome. Or, a segment of DNA might accidentally be replicated twice, leading to extra copies of a gene in the genome. While sports have been sources of novelty and variation in plants, the scale and scope of changes achievable through artificial selection have, it the dominant method for creating new plant hybrids, greatly expanded in recent years by recombinant DNA techniques like CRISPR.

When reading this I can’t help but wonder if patenting a plant or, to be more specific, the naturally-occurring variation of a plant isn’t somehow cheating in a way. Most of the other plant hybridizers are out there carefully crossing variants in the greenhouse and lab to develop the 6000-odd plants that have been patented so far, while Mr. Bosenberg just gets lucky and notices the plant doing something useful all by itself. While this is in no way downplaying the work he and his colleagues did, the question is whether that’s enough to deserve exclusive rights. But more on this later.

Please pass the guac. In 1926, Rudolph G. Hass, a postal worker and amateur horticulturist from La Habra Heights, California was driving through his avocado farm one day. He stopped and looked at a tree he had grown from a Guatemalan seed and noticed something different. The tree’s mature leaves were waved or rippled and up to 14 inches long, and darker than other trees in his orchard. The fruit, too, was different, with thicker nobbled skin, and a dark purplish skin when ripe. That, and other characteristics that make the fruit easy to ship form what would be known, famously, as the “Hass” avocado came from a tree that was initially deemed a disappointment. Originally grown from seed, it was intended to be grown as root stock for another variety, but the grafts didn’t take, and Hass decided to let the seedling grow out.

Armed with his observation of this novel plant, he applied for a patent and, in 1935, was awarded Plant Patent 139. It was the first patented tree in history. Today, the Hass avocado comprises about 80% of all avocados consumed, about a billion-dollar industry in the US alone, and is also a substantial proportion of the avocados consumed worldwide. All those avocados stem from that single tree he planted. Sadly, Hass only received $4,800 for the patent by the time it expired in 1952, the same year he passed away. The patent’s 20-year timeline meant it couldn’t be renewed without showing an improvement in the product, which wasn’t possible. As a result, the potential financial benefits that might have come from the patent in later years, when the Hass avocado became a commercial juggernaut, didn’t pass to Hass’s descendants​ (who are apparently stoic).

Can we license nature? There are plenty of other patented plants. For instance, the Honeycrisp Apple (1988, Plant Patent 7,197) that are the result of artificial breeding. Since these patents last 20 years these and many other varieties of fruit and flowers can now be propagated by anyone, (even you, in your convenient home cloning machine). Nowadays there are also variants developed through genetic modification, like US Patent 5,859,347 for corn (Zea mays) by Monsanto, which expresses the Bt toxin (from Bacillus thuringiensis) to provide resistance against the European corn borer, a common pest.

But some critics question the validity of patenting naturally-occurring organisms, organisms of any kind, or even individual gene sequences. There is, of course, a huge financial impetus to do so. Who would be satisfied with building a better mousetrap when you can build a better mouse? One the other side of the debate are arguments that center on the field of Bioethics. Concerns tend to fall into three main camps:

• Ethical Concerns: How ethical is to to “own” parts of nature or natural life forms in the first place? Critics argue that life, in its natural form, should not be exploited for commercial gain, especially when the organisms exist independently of human intervention. From this perspective, the ethical dilemma centers on the moral implications of claiming ownership over parts of the natural world, saying that all life forms possess inherent value and rights that should be respected and protected, rather than exploited for commercial purposes. At its fullest extent, this viewpoint goes far beyond patents, having profound implications for keeping animals as livestock and pets. Even pulling back from that, there are those who argue that patenting species blurs the lines between innovation and the commodification of life, raising ethical questions about the extent to which human ingenuity can claim ownership over genetic modifications, especially when these modifications are based on preexisting natural forms.
• Access and Equity Issues: Patenting can limit access to genetic resources and biological materials, making it more difficult for researchers and the public to access them. This can also lead to equity issues, particularly when patents are applied to organisms that are vital to the livelihoods and cultures of indigenous peoples and local communities. One famous example was the lawsuit between Monsanto and Canadian farmer Percy Schmeiser. who was sued by Monsanto in 1998 for copyright infringement. Monsanto claimed that Schmeiser had infringed on their patent by growing Monsanto’s Roundup Ready canola without a license. Schmeiser contended that his crop was contaminated by Monsanto’s GM canola without his knowledge or consent, likely through pollen drift or seed mixing. The Supreme Court of Canada ruled in 2004 for Monsanto, albeit with a fine of $0. No cases of this have been cited since Monsanto was bought out by Bayer in 2018.
• Biodiversity and Environmental Impact: There are concerns that the commercial exploitation of natural organisms could lead to biodiversity loss and negative environmental impacts, especially if it encourages monoculture or the unsustainable extraction of natural resources. So, for instance, patents on specific plant varieties, especially those engineered for higher yields, disease resistance, or herbicide tolerance, can lead to their widespread adoption by farmers seeking to maximize production efficiency. This both reduces the genetic diversity and resilience of cultivated plants and can lead to decreased wild biodiversity as habitats are altered or displaced. Mother Nature loves complexity.

As I write this, the human population of the world is sliding up to 8.1 billion. That’s a lot of hungry mouths to feed. In a sense, plant patenting is just a small a microcosm of the Green Revolution, which was created to create global food security. This also has its proponents and detractors, but whichever side of the agriculture fence you might sit on, addressing the challenge of sustaining a growing global population highlights the extraordinary scope of human ingenuity. This ingenuity, exemplified in the development of botanical innovations, mirrors our broader capacity to confront and solve complex problems. It’s a testament to how we, as a species, apply our creativity and scientific knowledge to extend the frontiers of what’s possible. As we navigate the future, it’s this very ingenuity that offers hope.

And to celebrate this, I’m currently preparing a spot in our garden for New Dawn roses, an ongoing reminder of the power of innovation.