Agave attenuata variegates/ Sungold vs Karas stripes

[Kelly Griffin]

About twenty years ago I bought a different variegated form of attenuata. I bought it at the Huntington auction. It came from Rodgers Weld in Malibu. He called it "Sungold" I see no difference in the form that is now sold as "Kara's stripes" my question is how can it be that this plant now has a Patent and further more what is the basis for such a patent. Does anyone know who holds this patent and what the story is behind this. If the plant originated in a seedling batch, I think it might be legit but since the plant I bought was named and I can show that it was named well before this, I think its new naming might be dubious.

Any thoughts?

Kelly

[Matt Maggio]

...I think Shady Oaks Nursery may have something to do with it. That's the first place I saw 'Kara's stripes'

[randyfb]

Agave attenuata 'Kara's Stripes' was discovered by Gary Gragg - Details on our webpage at:
http://www.smgrowers.com/products/pl...?plant_id=3158
Randy

[agavegreg]

Maybe Tony can expand on this, but as I read the International Code of Nomenclature for Cultivated Plants, there are four key points in order for a cultivar name to be valid if it was named after January 1, 1959.

First, the cultivar name must be published in printed matter and distributed to or made available to the public. A catalog should work fine.

Second, the publication must be clearly dated at least to the year.

Third, the publication of the cultivar name must be accompanied by a description or a reference to a previously published description of the cultivar.

Fourth, the cultivar needs to exist. That's kind of open ended, but it's pointless to hang a cultivar name on one plant and then never reproduce that cultivar. I have seen this a lot with Adeniums. People get a plant with an interesting flower, then give it a cultivar name, but it never gets propagated and made available to the public.

[Tim Harvey]

I would guess "Sungold" was never validly published.

T

[Kelly Griffin]

Ok so then would I have to stop propagating this plant that was in my collection some 15 years before this guy patents his "sport" or even better should I now pay a royalty even though without question my look alike material did not come from him? or a tissue lab??

I might put it out there that perhaps he came by it by way of Rogers or myself.

Argh! Thoughts???

Kelly

[Tim Harvey]

According to Harry Mays, any plant which fits the defined characteristics of a particular cultivar IS THAT CULTIVAR, no matter what its parentage. Apparently even seed grown plants can be a specific cultivar if they fall within its description. Seems crazy to me, but I don't have a copy of the ICNCP to check. I am not aware that a cultivar has to be a specific clone, however. Maybe someone can look it up.

On the other hand, there would be little point issuing plant patents if this were not the case since anyone could say a particular plant had a different origin than the patented one.

T

[Tony Avent]

Kelly:

Here's where the patent system gets a bit murky. I have communicated with Gary in the past and he seems to have found his plant independently of yours. If he had been aware of your plant when the patent papers were filed, then it would not have been legal to patent his plant. It is possible to have the granted patent challenged, but this requires a patent attorney, DNA testing, and therefore would likely not be economically feasible. It is much easier to challenge a patent before it has been granted, sans lawyer, but the US Patent and Trademark Office makes it almost impossible to do so, without posting all of the pending patents.

In the past, the patent office has ruled that similar plants/sports were all considered the same, but that was changed nearly a decade ago with the advent of genetic testing, so you can now have a similar sport that is not pre-empted by a granted patent...of course, DNA testing to determine this is not cheap.

This is exactly why we set up our Agave gallery to document the agave sports, their dates or origin, originators etc., which hopefully will prevent another such problem the future. We work very closely with many of the marketing firms that manage the patents and are often asked if such a plant already exists (which was the case with Gary's agave). If we had known about your plant, then we would have advised such and the plant would probably never have been filed.

My suggestion at this point would be to contact the patent holder and see what you could work out regarding propagation, etc. I hope this helps.

[Tim Harvey]

Kelly, I think the only thing to do is give the plants away and make the patent worthless ...

T

[agavegreg]

Hear, hear, I agree with Tim. Give away the plants!

[Kelly Griffin]

I have pups!

[amarguy]

From HBG 2 weeks ago ... which one would this be?

[STEVE IN SOCAL]

I have a few of those clones...the best Var. attenuata in my opinion.

[Allen Repashy]

I have one too..... I think I am going to Patent it, so sorry Steve, you aren't allowed to propagate yours any more... Tim, can you tell the guys at HBG that they better not ever propagate it or else!

[Matt Maggio]

so do I... guess I'd better trash those pups I've been hoarding the last year.

[STEVE IN SOCAL]

Originally Posted by Allen Repashy

I have one too..... I think I am going to Patent it, so sorry Steve, you aren't allowed to propagate yours any more... Tim, can you tell the guys at HBG that they better not ever propagate it or else!

Dayum!!!! You guys are hard core

[digixjairo]

Let me know when you guys are throwing your plants away

[STEVE IN SOCAL]

Originally Posted by digixjairo

Let me know when you guys are throwing your plants away

Oh man...I just put mine through the shredder. You should've been faster.

[William Ross]

I'd contact the patent holder and tell him you've had possession of the plant 20 years before he filed, that you'll gladly put his name on them and sell off your stock or, sell them to him at his rates or, as suggested, give them away.

[Gary Gragg]

I was alerted today of this discussion thread by a friend of mine and felt it needed a response from me to clear things up. I also received an email earlier in the week from Kelly Griffin inquiring about the patent process for Kara's Stripes. I responded to him at that point, but I will be more thorough in my response here to clear any confusion. First my response to Kelly's inquiry:

Yes I am the right person for this question. Although there are many varied variegated forms of Agave attenuata in cultivation, I have never seen one exhibiting the same characteristics as the one I patented. I'm sure the plant you are referring to is genetically different from mine. Mine came up as a sport from a large clump of Agave attenuata I had growing on a hillside at my previous property. I often find variegation in my masses of Agave but Kara's Stripes is the most dramatic. I have another that displays the same variegation as Kara's Stripes but only with half the color intensity, thereby making it really, just another Agave. And yet still another was accidently created during Kara's Stripes tissue culture that comes out as a solid gold without variegation. Randy Baldwin and I decided it wasn't really worth patenting. When I first dabbled with this plant, I had only seen 2 variegated Agave attenuatas in my life. One in person at Tropic world Nursery in San Diego, and another in the book Tropica. Each was very different from mine, both having very pronounced and bold white striping. But now with the internet, I have seen photos of probably 25 different forms of Agave attenuata, some much more beautiful than mine, some mildly similar to mine, but none exactly the same. (end of response)

And to further clarify matters, at the time we considered doing the patent, I had a lot of people look at my plant to see if they had ever seen anything like it including Randy Baldwin of San Marcos Growers, George Hull of Western States Nursery, Robin Stockwell of Succulent Gardens Nursery, Greg Starr of Starr Nursery, Brian Kemble curator of the Ruth Bancroft Garden and Tony Avent of Plant Delights Nursery. These were, and still are, the biggest Agave experts I know. On top of that, the plant was sent out for field trials to numerous growers including Heather May of Rancho Tissue Technologies (I was told Kelly is an employee at Rancho Soledad Nursery). Non of these respected plant experts had seen the plant before nor noted that it resembled any existing A. attenuata variegates they knew of. If any had, we may have reconsidered the patent since you want to be sure you have something that is unique and won't be contested since the patent process is both long and expensive.

Finally, if I have not put you to sleep yet, here is a more elaborate account of the 13 years it took from finding and isolating the plant to applying for its patent.

Golden Gate Palms&Exotics

If anyone is interested in propagating Kara's Stripes, they should simply contact Plant Haven, the manager of the patent, and arrange for a grower's contract.

PlantHaven… plant breeders' agents

Regards,

Gary Gragg

[Rob]

Amarguy,
That is what I call A. Joe Hoak. I was able to met Joe a few weeks ago after the South Fla trade shows in January but not Greg, his son, who I believed made the cross. He is a great guy to talk to about the recent history (50s-80s) of the ornamental plant market. It has been a challenge for me to grow this as the lower leafs get circular blemishes almost looking viral. It is beautiful when well grown.
Matt,as for the Shady Oaks connection on Kara's stripes, I think that is where Tony has some of his Agaves and Hostas tissue cultured.
Rob

[Allen Repashy]

Actually, that is not Joe Hoak in the photo. Joe Hoak is a sport of Agave desmettiana. The plant pictured is pure Agave attenuata. They look similar in a photo, but are very distinct in person.


Photo credit to Tony Avent (click photo for link to website)

[Rob]

Hi Allen,
After seeing your response, I enlarged the photo from Amarguy and saw the smooth leaf margins and realized my mistake. Thanks for the clarification.
Rob

[rpw]

'Joe Hoak' has hard leaf-tip spines and some leaf margin spines, not to mention a slightly different leaf shape....
Amarguy's plant looks like an attenuata to me, though it has very similar coloring to 'Joe Hoak'...
Also, I think 'Joe Hoak' is a sport from Agave desmetiana and not a "cross"...
Just my two cents.
Peyton

Well I see I was too slow typing my message...
:-)

[STEVE IN SOCAL]

Wow....Allen got one right