A Tale of Two Plants

For the latest update, check out “A Case of the Emperor’s New Clothes?

How we have been ground down by opportunism and bureaucracy
Cordyline Red Fountain - CopyCordyline-BurgundyCan you tell the difference between these two plants? No? That is hardly a surprise to us and we should be experts because one of them is our own Cordyline Red Fountain.

The growing trials - can you pick the difference?

The growing trials – can you pick the difference?

Red Fountain was the lucky result of a sustained breeding programme spanning decades by both the late Felix Jury and Mark Jury. When it was first released, it was unique. There were no other clumping cordylines with rich burgundy leaves which arch outwards. We applied for, and received, the equivalent of a patent (Plant Variety Rights in NZ and Plant Breeders Rights internationally) first in New Zealand and subsequently in Australia, USA, Europe, South Africa, the UK and Canada. This means that nobody is allowed to propagate the plant for sale except under licence and provides the opportunity for a return to the breeder.

Father - Felix Jury (d.1997)  in a patch of Cordyline Red Fountain

Father – Felix Jury (d.1997) in a patch of Cordyline Red Fountain

When Malcolm Woolmore of Lyndale Nurseries/Kiwi Flora in Auckland released a look-a-like plant, we were intensely irritated. This is a man who loudly proclaims that he supports NZ plant breeders – but not, apparently, breeders who are not his own clients. He didn’t mind attempting to compete at home and internationally with us, using a plant which few, if any, can tell apart. He named it Cordyline Burgundy while ours is marketed on the major USA market as Cordyline Festival Burgundy (ref footnote 1). The similarity in names did not seem a coincidence.

and son - Mark Jury with Cordyline Red Fountain

and son – Mark Jury with Cordyline Red Fountain

When he applied for Plant Variety Rights here and overseas, we were confident that our interests would be protected. After all, the legislation specifies that a plant must be distinctively different (ref footnote 2) to be able to be patented and his had no distinctive differences that we could see, nor indeed anybody else to whom we showed his plant.

In this country, plant variety rights are decided by the Deputy Commissioner of the NZ PVR Office, a very small division of the new super Ministry of Business, Innovation and Employment. When we started to suspect that the Deputy Commissioner was determined to find differences between Red Fountain and the ring-in, we began to ask for a blind test. That is where plants of both varieties of the same size and age and in the same pots are mixed up and a group of suitable people are asked to separate them into the two varieties. That, we thought, was a fair test – they were either alike or able to be accurately differentiated. Our requests were ultimately ignored.

Growing trials (pictured above, photo 3) were carried out at an independent location. Apparently, none of the professionals or staff who looked after these growing trials could pick any difference between the two varieties.

In due course, the Deputy Commissioner, Mr Chris Barnaby, ruled that Cordyline Roma 06 (marketed as Cordyline Burgundy) was distinctively different and he awarded it PVR. This was based on the trial and examination by measurement of 8 leaves of Red Fountain and 8 leaves of Roma 06. Apparently when you get out the tape measure, the pedicel on Roma 06 is a little shorter, when measured over 8 leaves. The pedicel is the narrowing at the base of the leaf where it grows from the central stem. There is no difference in colour, shape or growth habit.

In the Examination Report it is even admitted that when the 16 leaves were mixed up, the examiners could not tell them apart. In other words, no customer is ever going to be able to tell the plants apart and precious few growers or plantspeople will either but the Deputy Commissioner was not going to let that stop him from granting equal rights to this identical looking variety.

We were stunned by this decision.

Our agents, Anthony Tesselaar Plants, immediately lodged an appeal on our behalf, reiterating earlier requests for a blind test and questioning the sample size for the assessment (eight leaves only of each). It became clear that despite having made the original decision, the review was also to be carried out by the same individual, Mr Barnaby. Both our agents and we contacted Mr Barnaby’s superior, the Commissioner, to table our concerns at the lack of independence in the review process and to ask for a blind test. It took a long time and, we assume, a question from the Minister’s office before the Commissioner replied saying nothing of note and declining to get involved.

We went to see our local Member of Parliament, Jonathan Young who appeared to grasp the issues quickly. He raised the matter with the Minister, but all that happened was that we received a reply couched in such bureaucratese that we burst out laughing. “Yes Minister” style, probably emanating from the Commissioner and Deputy Commissioner. It satisfied our MP but not us.

Side by side at the garden centre. Is the customer likely to see any difference?

Side by side at the garden centre. Is the customer likely to see any difference?

The Deputy Commissioner completely ignored repeated requests for a blind test and ruled in favour of his earlier decision. No surprises there. To rule any other way would be to admit that he had made a mistake earlier, or that the comparison testing wasn’t adequate and that did not seem likely.

All that is left would be to take the matter to court – us vs the Government of New Zealand. We do not see that as an option. We lack their budget and the costs could well exceed the royalty returns even if the court ruled in our favour.

We no longer have any confidence in the Plant Variety Rights system in this country. Clearly all PVR has become is a rather expensive marketing tool controlled by a querulous individual in government employment. The only reason to continue with existing PVRs we hold is to honour contractual agreements already in place. It has become clear it offers no protection at all to existing intellectual property rights.

We have been disappointed at the willingness of Malcolm Woolmore, through his company Kiwi Flora, to take advantage of years of plant breeding and years of establishing a new plant in the international marketplace by releasing a copy product. He claims to have repeated the original cross (banksii x pumilio). For technical reasons of which only a few are aware, we doubt it. To us, it looks as if it is just a seedling from our Red Fountain.

Notes:
1) The marketing name of Cordyline Festival Burgundy for USA was to avoid confusion with an existing plant – Pennisetum Purple Fountain.
2) Distinctive differences, for the purposes of a plant patent, include specified minimal distances between key genetic characteristics.

For the record, in the photos at the top, Cordyline Red Fountain is to the left, Cordyline Burgundy to the right. In the photo below, Cordyline Burgundy (also known as Roma 06) is at the front and Red Fountain is at the back.

Postscript Sunday 27 January
I fully expected Malcolm Woolmore to come out swinging. In fact I would probably have been disappointed had he not, forever wondering whether he had read the piece above. I cut and paste the section from his February eBrief received today, Sunday 27 January because the link to his site appears to be faulty, taking you instead to his December eBrief. I have no desire to enter debate with Mr Woolmore so my only comment is that I will leave it up to readers to decide. Go and have a look at the two plants side by side in your local garden centre.

A One Sided Tale of Two Plants
Read Abbie Jury’s blog or Google Chris Barnaby, Cordyline Burgundy, Malcolm Woolmore, Lyndale Nurseries and heaps of other words and you will read a one sided story titled ‘A Tale of Two Plants’.
Mrs Jury does not seem to share UPOVS (International Union for the Protection of new Varieties of plants) respect for the Deputy Commissioner of the NZ PVR Office, Chris Barnaby. Chris, a past Chairman of UPOV, has been maligned and misunderstood in an attack that some might consider libellous.
I will not comment further, as Mrs Jury, I believe, says more than enough for most to question whether her story is complete and unbiased.
Suffice to say, that the intention to grant Australian Plant Breeders Rights for Cordyline ROMA 06 or Cordyline ‘Burgundy’ was published last year, after independently being assessed and found to be distinct.
That is, in addition to the decision made in New Zealand.
For the record, Cordyline ‘Burgundy’ has resulted from a collaborative breeding programme established between Robert Harrison of Greenhill’s Propagation Nursery (Vic. Australia) and Lyndale.
It is one of four plants selected, of which you will hear more about at least two. (One of which is dwarf). Cordyline ‘Burgundy’ is represented overseas by Kiwiflora.
Our breeding program did not take decades, but it did involve the application of embryo rescue and other technology.
(More on this when others cultivars are released).
Kind regards
Malcolm & The Lyndale Team”

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20 thoughts on “A Tale of Two Plants

    1. Abbie Jury Post author

      No, I don’t think it is a conspiracy. Just opportunism and bureaucracy compounded, maybe, by a deficit of ethics and a lack of accountability! But yes, deeply unfair.

  1. Tom Whelan

    I was sorry to read that, Abbie. As you say, it is “deeply unfair”. Enormous work can go into plant breeding and the end result should not have been as the Deputy Commissioner decided.

    1. Abbie Jury Post author

      Tom! You read my site? well, obviously. Thank you for your support. I doubt that the Deputy Commissioner has any comprehension of what goes into a sustained breeding programme (as opposed to chance discoveries). And all self funded of course. We have pulled the plug on breeding directions and selections as late as 15 years or so after the original cross.

      1. Tom Whelan

        I enjoy reading the site! The tale of the two plants made me want to comment- firstly, because of inadequacies in the Deputy Commissioner’s original testing regime and then the refusal to allow a blind test -and- secondly, because of the nonviable situation plant breeders can end up in in seeking justice- it becomes too costly to pursue which is so wrong. Heads against a brick wall stuff!

      2. Abbie Jury Post author

        We can’t believe that the same man who made the decision got to deal with the appeal as well. Seems a total failure of process to us.

  2. Tom Whelan

    Yes, I am surprised at that: it goes against the principle of natural justice. Other than the Courts, could not that decision be bought to the attention of a third party which would go into bat for you? We have all sorts of bodies one can appeal to these days, when one has been wronged by public institutions and private organisations. There may be an expense of effort and considerable time, but the financial side may not be so onerous. Just a thought, but I would imagine that you have both already examined such possibilities and weighed the likely outcome.

    1. Abbie Jury Post author

      I wondered about the ombudsman. But, to be honest, we have expended so much energy and angst on this whole sorry saga, that I lack the will to get bogged down in it any longer. It can drag one down so much that sometimes it seems better just to move on and hope that karma will rule.

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  5. Doug Birnie

    Have you considered that the main performance criteria for the PVR Office could well be the number of patents they approve? That they manage their own complaints is nothing unusual as the same process is applied in education through HITO which competes directly with Polytechs and manages the whole process as well. The state of copyright legislation is a total mess and a travesty of justice. Authors of books get 70 years of copyright after they have died. Plant breeders do not even get a lifetime of copyright. The amount of work involved is not the issue obviously.

    1. Abbie Jury Post author

      Yes, I had figured that it is in their interests to have as many PVRs as possible because that is the driver for income and the justification for their existence. This was an interesting test case because, as far as we know, there had never been two plants so close to identical as to be indistinguishable to the naked eye. However, if they undermine their own system, it seems a short sighted view to take. I think there is a difference between a complaint and an appeal. Generally, one might anticipate a different person would deal with an appeal – in the interests of fair process, accountability and natural justice – but clearly not! Certainly there are international rumblings about the inadequacies of plant breeders’ rights legislation and this decision may add fuel to that fire. All too late for us, unfortunately.

  6. Sue Penman

    There are much bigger fish who want PVR when you are talking about bigger fish! Hort. Research, Places like Apollo and the Kiwi fruit people. They may be interested to know their work stands for nothing!

  7. Doug Birnie

    Actually Abbie, I have to admit to doing a similar thing with a gold Libertia that is currently in vogue. Because it is a homozygous recessive (same as Red Fountain) it will come reasonably true to the parent plant if self pollinated as the considerable crop of very good yellows showed. I have not applied for a plant patent on it however! I do have some ethics. Also, I must admit to growing seed from Red Fountain. This was open pollinated, probably by some hybrid Cordyline in our garden. I wanted some green dwarfs, not reds. There have also been a couple of examples of identical, or near identical cultivars produced from completely independent breeding lines in roses. If you researched the subject it is likely there would be plenty more. Look at all those pink camellias!

    1. Abbie Jury Post author

      I think you might have missed the point. I was not writing about copyists (we know plenty about that). I was writing about the failure of the PVR system to protect our intellectual property.

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