Years of work, or lucky accident, the discovery of an exciting new or improved variety is every plant breeder and gardener's dream; but once you've found it, then what? For many top breeders, the answer is to contact Proven Winners®.
Finding or developing new plants is difficult enough, but negotiating legal issues, dealing with marketing and meeting production requirements is more than most individuals want to deal with. For this reason Proven Winners is the perfect partner to help you bring your plant to a global market.
Proven Winners works with their plant breeders to explain the risks, and can help to manage the costs of patenting your discovery. Proven Winners also provides the infrastructure to help you succeed. Virus screening, tissue-culture facilities, comparative trialing, the highest quality production facilities and an international marketing network including the US, continental Europe, Japan, South Africa and Australia.
Proven Winners works with more than 170 different plant breeders and plant breeding firms globally. We are the leading retail brand in the US and Canada and sell millions of young plants around the globe while paying royalties for patented plant material to the breeders we work with. We have the most recognized retail brand in the business and are known for having only the highest quality genetics. Let us help you succeed by using our network of experts in genetics, production and marketing of ornamental plants.
For information about Proven Winners plant criteria or to discuss your work, contact our experts.
What to do first
Once you have bred or found a new flower form, what do you need to do?
First start keeping a paper trail (if you don’t already have one) of how you bred or found the plant. The better your records the easier protecting your new plant is. These records should include the name of the plant the seed or cutting came from and what makes it different. The longer and more detailed your paper trail or breeding records are the better.
If you are sending images of your plant, here’s how to format them. If you want to contact the industry and show them your plant, the first thing you need to do is format any pictures with these words across the bottom of the image ‘NOT FOR SALE’. For all communications with companies who might be interested in your plant these words should be on all pictures. Why? Because the US patent office considers images without these words to be an offer for sale and it affects whether or not your plant can be patented at a later date. For more on what makes a plant patentable or unpatentable check the patenting section of this article.
Contact the industry and see if they are interested in your plant. Always ask for a trial agreement before you send any plants away for trials. It reduces confusion in the trial process and protects both parties as a trial begins. Click here for more info on trial agreements.
Hygiene pays: Every year we receive plants from breeders that are infected with any number of plant viruses, and this usually is enough to remove the plant from our consideration. What you don't know about tissue culture, plant viruses, and bacteria could cost you years of waiting. An infected plant takes at least 2 years longer to get to market than a clean plant, as well it adds two years of additional laboratory costs and labor. How can you protect yourself? Learn more about virus free plants and how to keep plants clean.
Study up and learn a bit about what you are competing against.
- Market Share - Are you providing a new Petunia or a new crop? If there are already a hundred plants of the same type as yours on the market, you can expect it to be 100 times harder to make the same profit. However, a common plant like a petunia can sell 100 times more than a smaller new crop, so there is a balance to this.
- Other Breeders - How many people are doing what you do? For commodity crops; big breeding companies may have teams working on the same crop. What are your chances of success with fewer resources?
- What's your edge? - How is your crop different from all the others? If you don't know, it takes longer for the company you work with to trial and prove any improvements.
- What are you breeding? - Wild is good, new and different is easier to find a market for; but if the industry can't grow it, they won't buy it. Look what is popular: Petunia, Pelargonium, and Coleus. Is what you are breeding this easy to produce? It doesn't have to be, but easier crops move through the systems faster.
- Where does your plant do well? - Is it tropical? Does it require a freeze to flower? Will it only grow indoors? How long does it take to flower? There is a different outlet for each of these plant types, but the more you know about where to look for an opportunity the better your search for a market will be.
What is your personality like?
Another thing to honestly evaluate is your own ability to work with people and deal with details. A lot of horticulturists are really plant-people and not necessarily people-people:
If you hate this stuff...hire a breeder's agent or partner with someone like Proven Winners to work with marketing your plants. Find someone who can make it easy for you to understand the entire process and let you focus on the part you like - the plants.
What does it cost to bring your plant to market?
Even on the cheapest scenario it takes at least $6,000.00 for a company to release your plant. For most plants working through an average company system, it is closer to $10,000, and in some cases might go as high as $20,000. That is what the company spends; most of this will be invisible to you, the breeder; unless you are cost sharing in some way with the company releasing your plant.
Every situation is different, but it helps to have an idea of what is involved. It costs money to introduce a plant as a plant breeder. You should be aware of the costs and how your partners are working with you to cover those costs.
To bring a new crop to market entails a lot of money spent behind the scenes, usually agreements specify who will pay all the different phases of release. Most agreements cost share, and or prorate pre-market expenses against future royalties.
How long does it take to bring your plant to market?
In today's world of high tech horticulture, it is no longer enough to just take cuttings and grow. Most companies have 1-2 years trialing, 1-2 years virus cleaning and stock production, 1 year limited release, then full release and then a year until you may get your 1st royalty check. So plan on about 6 years, it can be faster or slower, but this is a good average.
New plant introductions are not ‘a get rich QUICK’ scheme.
The old feeling was that a plant finder could get rich quick, hey, anything is possible. However, the average independent plant breeder with a few successes is likely getting enough money to pay his greenhouse heating bills, maybe subsidizing some travel or a vacation. It can be more, but you increase your chances of making more if you pay attention to hygiene in your breeding programs, understanding what is on the market, understanding your own strengths & weaknesses, and having a realistic outlook on the time and money involved in the process.
Our advice is to get out and meet other plant breeders, hear their stories, learn from their experiences and when you make a choice on what company you want to work with, make that choice based on your ability to trust them to do the best they can for you and your hybrids. Be realistic, be informed, and be patient. Check the quick links for some ways to find other plant breeders to interact with.
A Trial Agreement is a legal document to protect the plant breeder during the crop development process. It basically states that your plant is in the custody of the company evaluating it. This plant and any sports that result from it remain your property for the period of the trial. It should include something about the fate of the plant after trialing; when the trial ends your plants should be introduced to the market, returned to you, or destroyed; in this way protecting you and your investment. With trial agreements there is usually no exchange of money, only an agreement to protect and evaluate a new plant. Contact Proven Winners for a sample trial agreement.
How long does a trial agreement last?
The length of time for a trial agreement is usually at least 2 years, sometimes longer especially if a plant is difficult to produce or has some trick to getting the best performance out of it. In general, perennials and woody shrubs and trees have longer trial agreements than annual flowers because they take longer to reach flowering size.
Plants & Patenting
A plant patent states that the genetics of your plant, or hybrid, are unique and can be protected under US law for 20 years. All plants accepted as Proven Winners must be patentable in the United States; Proven Winners can manage the patent process for the breeder. Usually a plant patent is applied for after the plant has been proven to be a step forward in genetics, few people or companies will patent a plant until it has shown itself to be of value. For Proven Winners, this means after the trialing period is over and a plant has met our high standards. Patent costs are usually paid back through the royalty stream the crop generates, so the breeder has no out of pocket expenses. Separate patents may be needed for Canada, Europe, and Japan if the plant will be marketed outside the US.
How does Proven Winners get patentable plants?
There are many types of plant breeding and selection that generate patentable new crops. These may come from a hobbyist gardener working in their back yard or an established corporate plant breeding program, but may also be generated by a random chance discovery, spontaneous changes in plant appearance (sometimes called sports”), and chemical, x-ray, or gamma ray mutation. Anything that is arguably different from other plants of the same genus and species is patentable. In some cases that may take some time to prove, so plan on the extra time to make sure you have a valid patent.
Why does Proven Winners patent all their plants?
Proven Winners patents all their plants and sets up exclusive arrangements for their promotion and sale with the breeder because it means higher rewards to the breeder, quality control of production, the best retail marketing in the business, and most importantly control of propagation so that the plant cannot be stolen or propagated illegally. By patenting and exclusive rights Proven Winners can provide our breeders with the best protection, and the highest return.
What is a Trademark and how does it differ from a patent?
Trademarking has to do with marketing a given plant under a "trade name" and unlike a patent it offers no direct protection for new varieties, but assists in marketing efforts. Plants released as Proven Winners are trademarked by Proven Winners while the patent always remains in the breeder's name. Trade names should not be confused with patent names and should never be the same or the patent is at risk. Trade names are designed to drive sales and establish a protectable name for a given plant.
What makes a plant unpatentable?
There are many ways in which a plant can be un-patentable, and it is often a complicated matter. Here are some ways in which your plant may not be patentable, although even if your plant cannot be patented there are alternatives that may still generate some income.
If your plant is an unimproved species, not a hybrid
Generally patent laws do not allow you to patent plants that are identical to existing species in the wild. If you are unsure of how to proceed, contact Proven Winners for a free consultation.
If your plant is not sufficiently different than another given hybrid
This is something that you need to be able to prove otherwise the course becomes much more difficult. Proven Winners can help with this by comparing your hybrids to industry standards as part of their trialing process.
If your plant has already been given away or sold publicly in the US more than a year ago
Sadly, according to US patent laws, plants that have been in the industry for more than a year become un-patentable. This is also true for plants used in public settings, display gardens, or any other public or published forum.
If your plant has been available or for sale in another country for more than a year
The same general rules apply to plants publicly available in other countries. Contact Proven Winners if you have a question regarding a plant that has been sold in another country, we are your best bet for finding out the truth about your plant or to help you through the patenting process.
For more information about plant patenting criteria, contact our experts.
A royalty is a fee charged at sale for each patented plant sold. Usually, it is a few cents per plant. and This money goes to the plant breeder, as well as funding marketing efforts that help sell more of your plant by providing advertising of the plant and ideas on how to use the plant to its best advantage (the marketing fee goes to marketing, the royalty ALL goes to the breeder). The more plants sold the higher the annual royalty check to the breeder will be, so it is important to have not only the best genetics, but also a strong marketing and promotional program to insure the success of a plant's introduction. As an example; if 50,000 plants are sold and there is a 2 cent royalty on each plant, the total royalty earned is $1,000. Royalties are negotiable, but a lot depends on the plant and the size market it may have upon introduction. For instance, with over 700 cultivars of geraniums on the market, a new geranium will be competing for sales more than a unique plant with little competition. On the flip side, well known garden plants like geraniums tend to sell more units because consumers are familiar with them where a new crop may sell less initially until people become familiar with the plant.
Foreign countries & Plant Patents
- Canada, Australia, South Africa, Europe and Japan all have their own plant patents & laws. A United States patent does not protect you in any foreign country. Proven Winners and our international partners can help with this process.
- Many other countries do not offer patent protection such as China and SE Asia where illegal propagation of many patented hybrids is currently standard operating procedure. If your plant is taken to one of these countries you have no legal recourse against illegal propagation unless you have a binding trial agreement in place prior to plant shipment and a partner like Proven Winners working with you.
A patent is only as good as the company representing you; in order for a plant patent to be protected you need an enforcer, without an enforcer you may find it very hard to protect your rights. Proven Winners is respected worldwide for policing their patents and stopping illegal propagation.
If my plant is not patentable can I still get a royalty for it?
Yes, but it must be written into a licensing agreement where the person selling your plant agrees to pay a ‘voluntary royalty’ on each plant sold.
For more information about plant royalties, contact our experts
Frequently Asked Questions
How can you be realistic as a plant breeder?
Be patient. The average time it takes from the first flower you see on a new hybrid to release on the market is about 5-10 years. Don’t go into this expecting quick cash, you will only be disappointed. A good partner in marketing plants will give you the common timelines for introduction, steps along the way, explain what is and isn’t of value in the industry, and provide the marketing and promotion for the success of a new crop.
What types of plant breeding and selection are there?
Breeding, random chance, sports, chemical mutation: All of these represent patentable options for a new plant, but each also has some pros and cons. Again, it is important to know the meaning of these terms and discuss with someone how you should best proceed.
What is a breeder’s agent and do I need one?
In the release process every connection you can make has value, this industry is a small one and everyone knows one another at some level. A plant breeder’s agent ideally is someone who will help you find the right place for your plant, and handle all the details of patenting and release for you. However an agent is essentially a middleman, who adds a charge to your royalty, and as such can be a less interesting option when you are dealing with larger horticultural firms. The key advantage to an agent is that they can shop your innovation to a number of potential outlets. However, larger companies prefer ultimately to work directly with the breeder directly since it saves them the agency fee. An agent can be a good partner or teacher, but they are not required.
What is involved with a trial agreement? And who should I trial with?
As the owner of your hybrid, you can trial with anyone; you can trial with one company or several. However, ANY trial requires a trial agreement. This a relatively simple documents that states that you are the owner of this plant, you retain all rights to the plant, no breeding with or mutating with your plant is allowed, and the plants must either be returned to you or destroyed at the end of the trial. Most trial agreements last 2 years or more. For more on trial agreements just contact us! For more info on trial agreements click here.
How do I know if I want to patent or trademark my plant?
A key question and you don’t have to patent or trademark a plant to claim a royalty for a plant; many plants are not patentable but still can give the breeder a voluntary royalty. Legally you need a patent for protecting the plant, and a trademark for protecting a marketing name. A trademark will not protect a plant, only the name it is sold under. For more info on trademarks & patents click here.
What is a royalty?
A royalty is essentially an agreed upon amount that is paid back to the plant breeder or plant finder for every plant sold. The amount of the royalty varies by the kind of plant sold. An annual plant usually has a royalty around 3 cents per plant sold, a perennial plant about 8 cents, and in woody shrubs and trees royalties may be 1 dollar or more. All royalties are negotiated before the plant goes to market. For more info on royalties click here.
How can you learn more?
BE PROACTIVE - Talk to other plant breeders and see what they have learned, contact different plant breeder agents and have them explain how they work, contact larger companies in horticulture and learn how they work with plant breeders. To learn how Proven Winners works with plant breeders, contact us!
What Not To Do
There are some things that can be big problems down the line. Knowing potential pitfalls can hopefully help you avoid problems.
Don't hand out plants without Trial Agreements.
This is the worst way to get started and most often results in someone else claiming to have discovered your plant or other confusion which in turn delays release of new plants.
Don't delay in deciding if the plant is worth the work.
Why risk losing money? Send digital images of your discoveries to Proven Winners and we can tell you if the plant is unique. There's no risk and you'll learn more about the whole process at the same time.
Don't insist on your names for plants.
It seems unfair but it is true, in most cases plant names change when a plant goes to market. This doesn't mean the patent can't have your name and the name you chose for the plant on it, but for retail markets the experts are often right; be realistic.
Don't become the problem.
Once the process has begun you need to be kept informed of what is going on. In most cases that is a quarterly or bi-annual notification of your plant's status. You can even insist on this in your contract, but don't make the mistake of calling weekly to get updates. They are your babies, but once in the system it will simply take time. Be proactive, but don't be a pest.
Don't distribute before patenting.
A trial agreement will protect you from many deadlines on when a plant becomes un-patentable, but giving away material without a trial agreement can start the clock and after one year your plant cannot be patented anymore, so protect yourself!
Don't change horses in midstream.
If things are not going well of course you need to get out of a bad arrangement, but doing it repeatedly will earn you a reputation among plant development firms. It is a small industry and you don't want people to close the door before you even get a chance to present your plants. Don't sweat the small stuff and focus on protecting yourself.
Sending plants off in hopes of making it big.
The moment you send a plant off to someone without a trial agreement you start the clock ticking. You have one year from that point to get your patent in place; after that year is up your plant is not patentable anymore. Remember it takes 2-3 years to get a plant through trialing alone and up to five years or more to get to commercial release. Protect yourself and don't give away your material without protection.