There are many producers and gardeners out there playing with plants and creating new varieties through hybridization, breeding, and experimenting with new accessible genetic technologies such as (Clustered Regularly Interspaced Short Palindromic Repeats) CRISPR. Many of the creators of these new varieties would like to protect their work by ensuring that they can name and show the world that they created a new variety with unique characteristics in flavor, production, timing or color. There are many different hurdles to overcome if one would like to do this and potentially significant costs associated with protecting that intellectual property legally. In the following blog I will take a look at a mango variety that a producer brought to me and how we go about establishing its uniqueness and what the steps are in naming and creating a new variety.

Question: I have a mango that I have created, and I would like to name?

Step 1-The first question here is how can we determine whether this is a new variety?

The first step would be an analysis of the plant and its genetics to prove that the mango is significantly different that other varieties.

a. To start you would look at the morphology of the plant and fruit. How does the plant differ in structure, form, production, color and taste.

b. Next would be to look at the biochemical traits in a lab. This can be done by oneself or by working with a local fruit tree researcher or Extension agent. Some categories that are focused in this regard are °Brix, Titratable Acidity, pH, Vitamin C, Total Phenolics, Total Flavonoids, Total Antioxidant Activity, Sugar Profile (Sucrose, Glucose, Fructose), Volatile Aroma Profile, and Dry Matter Content.

c. Next you would move on to genetic testing to determine if the mango is truly unique.  Based on the evaluation of several articles on genetic testing for mango varieties I created the graph below that shows the different types of genetic testing and the proposed efficacy to determine if a variety is unique.

In short, there are many different types of genetic analysis, and they have different costs associated so if you would like to go through the process ensure that you can afford the cost and meet the requirements of the next step.

Step 2. I want to name the new plant.

a. So, you have a plant that through research you believe is unique and offers the potential to be recognized scientifically as a species (rarely for bred plants) or cultivar. To be recognized as a species the plant must have significant genetic change and reproductive isolation from its ancestors. This makes naming or defining a new species significantly complex. A named cultivar however is more common with cultivated plants such as mango. To delve into the scientific naming for a minute say you define a new species of mango, and you want to name it after your grandfather James it could be named Mangifera jamesiana to follow Latin structure. If you were naming a genus, you could have a slightly different approach Magifera indica ‘Grandfather James.’ There are also Nativars (cultivated variety of native plant), variety (var. naturally occurring subgroup) or hybrid (x cross breed of two species or varieties).

b.It does not stop at the name however; next you would have to publish a peer reviewed paper in a valid academic publication that names and define the plant. This paper must be accepted into a scientific publication before others that may be trying to define a similar or very closely similar plant.  When this stage is over and all of the challenges overcome you have a name for your mango.

Step 3 What if I want to protect the plant and its name?

a. Trademark- This is defining the name of the plant as a Trademark that is used it the marketing of the sub species. A trademark is a word, name, logo, or phrase used by a company to identify its goods and distinguish them from others. This is a legal process that says you own the name of the mango so others may be able to propagate your mango but not name it ‘Grandfather James’ for example. Many larger agricultural and Horticultural organization have trademarks for their plants because these can help with the marketing and sales and clearly define their product as different from others. This is not too expensive and if you had a great name that was easily recognizable that you wanted to protect you could create a trademark for sales and marketing purposes.

b. Patent- Patents recognize the plant as a unique discovery and give the owner a right to the plant so anyone would have to ask for permission to sell or propagate that plant. This is usually a time-consuming arduous process that may require legal help of a patent lawyer. Not to mention the cost and effort involved with ensuring that others do not propagate the plant and defending the patent through legal support.

A plant patent is granted to an inventor who has invented or discovered and asexually reproduced a distinct and new variety of plant (including cultivars, hybrids, or mutants) (that is not a tuber-propagated plant or a plant found in an uncultivated (wild) state). Patent claims must be specific enough to meet the requirements of novelty, non-obviousness, and industrial applicability.  Which means that plants submitted for patent application must be carefully analyzed and defined. There are several ways that this can be approached as defined by the USDA.

Plant Patent (USPTO, 35 U.S.C. § 161): Grants a 20‑year right to exclude others from asexually reproducing, using, offering for sale, selling, or importing the plant in the U.S.

Plant Variety Protection (USDA ARS PVPO): Protects new varieties of seeds, tubers, and asexually propagated plants for 20 years (25 years for vines/trees)

How do I prepare a patent application for a new species?

1. Prepare the Application
   • Include a specimen (living plant) and drawings showing key features.
   • Provide a description of the plant and its reproduction method.
   • Submit claims defining the scope of protection.
   • File with the USPTO via the Plant Patent Application form.
2. Submit to USPTO
   • File with the correct fee and ensure all required documents are included.
   • The USPTO will assign an examiner and begin examination.
3. Examination & Prosecution
   • The examiner will review novelty, distinctiveness, and compliance with statutory requirements.
   • You may need to respond to office actions and amend claims.
   • The process can take several years.
4. Grant & Term
   • If approved, the patent is granted for 20 years from filing.
   • The patentee can enforce rights to exclude others from asexual reproduction and related uses

Naming a new species or cultivar can take some time and be quite costly. However, it can be a learning experience where you gain knowledge of many different facets of science and legal frameworks of intellectual property. If you have taken the time to breed and carefully identify the distinct changes of a particular plant in your garden it can be an honor to the time and effort it has taken to create and identify the plant. What is clear is that defining the name of a species or cultivar is very different than owning the rights to it and these two processes although requiring similar information are different in their outcome and uses.

In my mind, it can be quite challenging and possibly limiting to have a patented variety unless it has uniquely desirable traits that set it well apart from its competition or you have the capacity to propagate and market that plant over a wide area. If you do not have the interest or capacity to market and sell the variety you discover over a wide area; sometimes having the plant become a desirable quantity in peoples gardens may be based more on the availability and marketing of a named plant that is ‘free market’ rather than the clear definition of ownership. Whatever the case, it is an amazing thing to be able to name a plant or animal because that name will be connected to the plant as a legacy to the time and effort of the grower.

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