The High Stakes World of Patenting a Plant

Here’s a question: What do an iPad and a Cosmic Crisp have in common? While this might sound like the beginning of a dad joke (answer: “They’re both Apples!”), these two items are more similar than you’d think. Both the Apple iPad and the Cosmic Crisp apple are considered intellectual property, patented and protected by the U.S. government.

It might seem obvious why high-tech items like a tablet device would be patented and trademarked, but it’s also a common and long-lasting practice to claim intellectual property rights for new plant varieties like the Cosmic Crisp apple, which was patented in 2014 by Washington State University (WSU).

In 1887, the U.S. Department of Agriculture (USDA) created a new Division of Pomology — the science of growing fruits — as a result of the increase in new fruits and vegetables coming on the market. The division hired a team of illustrators to paint new varieties to add to its national register of plants and fruit, which was distributed in booklets to growers. (The USDA currently has a stunning collection of these illustrations on its website; scan the QR code at the bottom to view them.)

In 1930, the U.S. passed the Plant Patent Act, which allowed growers to file for patents for new varieties under certain conditions. These patents last 20 years and allow the owner to essentially rent out the plants to farmers. Some patented crops in Washington include Walla Walla Sweet Onions, Cosmic Crisp apples, Cascade Harvest raspberries, and Chelan and Orondo Ruby cherries. In 2020, the U.S. granted 22 plant patents in Washington state, with 1,398 patents granted nationwide, according to the Federal Reserve Bank of St. Louis.

“It’s really about a level of protection of intellectual property,” says Kate Evans, a plant breeder and professor in the Department of Horticulture at WSU. “So it enables the holder of the IP to have some level of control about where the variety is grown in the future.”

In the case of the Cosmic Crisp, the patent allows WSU to ensure seedlings are only available to growers in Washington state. Evans’ newest apple variety — WA 64 — has also gone through the patent application process and is awaiting its new name, which will be selected as part of a contest.

To receive a patent, the applicant must provide extensive information about all parts of the new plant, including measurements, descriptions of the leaves, flowers, fruit, and tree, and detailed images. If any information is missing — for example, a measurement of one of the flower’s internal organs — the growers will have to wait until the plant flowers again to get that data. The process can take years.

But before all of this — before the patent applications are submitted and the varieties are given jazzy new names — there is a grower or a team of researchers with a few seeds and a lot of patience.

The process of plant breeding is simply applying the scientific method to what already happens naturally: combining the pollen of one tree with the stigma of another in the same way that a honeybee would. In 1997, Bruce Barritt, a horticulturist who worked in WSU’s Pome Breeding Program, fertilized an Enterprise apple flower with pollen from a Honeycrisp, then planted the seeds and waited years for the seedlings to produce flowers. Each seedling was different, and the team went through a lengthy evaluation process to choose the best plant. The evaluation, testing, and selection process takes years and sometimes decades. Some of this involved observing the apples’ shelf life and doing tests in the lab, and some of it was just good old-fashioned taste testing.

“You just don’t know what any apple is going to taste like at any time,” said Evans. “There are fascinating flavors that pop up. Every tree is different — that sort of combination of the sugars and the acids, the slightly different aromas, and, obviously, the texture. But it’s not all great eating when you’re out with the seedlings.”

After the evaluation and selection process, WA 38 was chosen. This crunchy, sweet-tart apple’s dark red skin with small white dots eventually inspired its name, Cosmic Crisp. To produce more of this exact type of plant, the WSU team used vegetative propagation, using a bud from the WA 38 seedling and inserting it into a knot in a rooted rootstock. The little bud grew into a scion, which became the trunk of a new tree.

In 2019, 22 years after the first pollination, the Cosmic Crisp apple finally became available in grocery stores. It was an instant hit, becoming one of the top 10 best-selling apples in the U.S. in 2023, according to WSU.

“Cosmic Crisp is the Beyoncé of apples,” wrote Cindy Hollenbeck on the WS Foundation website, describing how the apple can stay fresh for a year in storage, ripens slowly on trees, and has a high sugar content and acidity, which is good for its shelf life.

While some patented plants came about after years of cultivation and selection, some others were discovered by a stroke of luck. Take, for example, the sweet, acidic Orondo Ruby cherry.

“They’re special,” said John Griggs, the CEO and general manager of Griggs Farms in Orondo. “It was just a chance mutation my dad saw driving around the blocks.”

Griggs’ dad, Marcus, noticed a tree in the orchard that had faster-maturing cherries that were sweeter and a different color than the others around it. He received a patent for this new variety, and the farm now has 80 acres dedicated to Orondo Rubies.

At the end of the day, all of this is really about producing crops that people love to eat. Evans says that while her job is a plant breeder, her passion is to be able to create new, improved, delicious fruits — and actually get people to eat them.

“Who doesn’t want to be helping the consumer improve their diet?” she said. “Encouraging people to eat apples? We’re about getting current consumers to eat more apples and also introducing apples to consumers who haven’t been eating apples before. You want something that tastes great!”

In 1887, the U.S. Department of Agriculture (USDA) Division of Pomology embarked on an ambitious project, hiring artists to render illustrations of fruit varieties. The project was essentially the first iteration of plant patenting. Per the USDA, “Use of color lithography was critically important to enable the farmer to visualize and comprehend the subjects and principles covered in a particular publication.”