Tag Archives: Cordyline Red Fountain

A Case of the Emperor’s New Clothes?

Cordyline Red Fountain (ours) and Cordyline Design-A-Line Burgundy - identical DNA

Cordyline Red Fountain (ours) and Cordyline Design-A-Line Burgundy – identical DNA

The saga of Cordyline Red Fountain continues.

Gobsmacked we were by the decision of the NZ Plant Variety Rights’ Office to grant equal legal protection to Cordyline Roma 06 (also known as Cordyline Burgundy). It seemed that they were determined to find differences where none existed and as far as we were concerned, Cordyline Roma 06 was a generic copy with no unique, distinguishing characteristics. We could not understand why our repeated requests for a blind trial to see if the two were distinguishable were ignored.

Well, ain’t DNA just a wonderful thing? We were wrong in describing Cordyline Roma 06 as a generic copy. Not a copy at all. It has absolutely perfectly matched DNA to Cordyline Red Fountain. Identical DNA.

We had plants DNA tested in a specialist DNA laboratory in Australia. The comparator variety, Cordyline Pinot Noir showed in excess of 5000 markers of difference. Cordyline Red Fountain and Cordyline Roma 06 showed… none. None at all.

This surely disproves the claim made repeatedly by Malcolm Woolmore that he went back and repeated the original cross. We were always sure that was not true, because of aspects of that original cross known only to us. He did not have access to the original breeder plants we had here, so he would have used different parent plants and the DNA would have shown that.

So what now? In the light of this independent, scientific evidence, will the NZ Plant Variety Rights’ Office review the original application and data submitted and reject the original proposal? This is what we thought should have happened from the very beginning. DNA evidence is now deemed sufficient to send somebody to jail for life in murder trials. We are not suggesting that this would be an appropriate action in this case, but we are waiting to see what will happen next.

New Zealand is a member of the International Union for the Protection of New Varieties in Plants (UPOV) so this situation will not sit in isolation but is already receiving international scrutiny.

Cordyline Red Fountain and Cordyline Burgundy - side by side garden centre plants, apparently with identical DNA

Cordyline Red Fountain and Cordyline Burgundy – side by side garden centre plants, apparently with identical DNA

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.

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”

Tikorangi Notes: November 11, 2011

How curious is Hippeastrum papilio?

How curious is Hippeastrum papilio?

Latest Posts: 11/11/11

1) The exotica of Hippeastrum papilio in flower this week. To me it looks more like an orchid than a butterfly.

2) So you think you might like to open your garden to the public? Abbie’s column (based on 24 years of experience here).

3) Grow it yourself – parsley, a vegetable garden staple of underestimated value.

4) Cordyline Red Fountain receives high praise in Australia.

5) In the Garden this fortnight – the first of a new series written for the Weekend Gardener, detailing what we have been up to in our garden.

Tikorangi Notes: 11/11/11

Rhododendron Ivan D Wood

Rhododendron Ivan D Wood

With the end of our garden festival (formerly the Taranaki Rhododendron and Garden Festival but these days the equal mouthful of Powerco Taranaki Garden Spectacular), we woke up on Monday feeling like zombies. Ten days of standing on concrete and meeting and greeting of visitors takes its toll when the pressure comes off.

Dichelostemma Ida Maia

Dichelostemma Ida Maia

Our flowering remains late but no doubt the season will catch up soon. The curious Dichelostemma Ida Maia (formerly a brodiaea) has been attracting frequent comment and Rhododendron Ivan D Wood is justifying its place with its annual flowering – lovely colour range but the foliage is pretty unappealing for the remaining 50 weeks of the year. It wants to live in a colder climate than ours.

We are stripping out the retail area and are no longer selling plants, though the garden remains open. The plant sales list has been taken off this site until next September or early October. We will not be selling again until Labour Weekend next year when there will be a two week period of sales. We have just had enough of selling plants and would rather enjoy gardening and gardening conversations.

It was undeniably pleasing to see Gardening Australia name Cordyline Red Fountain amongst their top 20 plants in the last 20 years. Equally pleasing to see Fairy Magnolia Blush named amongst their top 10 recent picks for long term success.

Cordyline Red Fountain receives high praise in Australia.

Cordyline Red Fountain and Mark Jury

Cordyline Red Fountain and Mark Jury

Gardening Australia, the top rating magazine and TV show, has named Cordyline Red Fountain as one of the top twenty new introductions in the last twenty years. It was the first of a new generation of clumping cordylines which does not develop a trunk allied to deep burgundy colouring. The hybridising was done by the late Felix Jury at Tikorangi in Taranaki and the plant was raised by his son, Mark Jury. It is widely available in garden centres both in New Zealand and overseas.

The Jury Plants – Cordyline Red Fountain

CORDYLINE RED FOUNTAIN (syn. Festival Grass and Festival Burgundy).

A flagship Jury plant, this one, the result of many years of effort which started with two different plant genus altogether. Initially there was the work Felix did with coloured and variegated flaxes (phormium). One of the most successful plants internationally became Phormium Yellow Wave – widely grown to this day in British gardens. We have always joked that had Felix received just one cent royalty for every Yellow Wave sold, we would never have had to earn a living but back in the 1960s, there was no protection of intellectual property rights and no expectation that a breeder be rewarded financially. There were other coloured cultivars (including Misty Sunrise and Pinky) from the breeding flurry but these have not stayed in the marketplace as Yellow Wave has. However, these coloured phormiums perform better in other places than our climate with its high humidity. We struggle to keep good foliage and they look pretty tatty and badly marked by insect and rust damage along with growing too large for a small garden. So Felix moved on to the next plant genus which offered similar clumping habit and pointed leaves without being spiky.

Over 30 years ago, Felix and Mark were both fascinated by the habit and appearance of our native Astelia chathamica (often sold under a cultivar name of Silver Spear). There was little that needed improving in the pointed silver leaves of this clump forming plant, but both father and son saw the potential in trying to create a different colour-way with red foliage. So began a twenty year effort before Mark pulled the plug and decided that his red astelias were simply too difficult and too unreliable to market widely. We still have them in cultivation in the garden here and a few of the selected clone were released by us onto the market. Other seedlings found their way onto the market by devious means on the part of a third party (that is a story best kept in-house) but clearly others found the plant just as difficult to build up – and indeed to keep alive at all – because it has never been a huge commercial hit despite the demand. Sometimes breeding directions are more blind alley than interesting path and Mark reluctantly abandoned the red astelia.

Undeterred, Felix looked to the cordyline genus where he crossed two lesser known NZ forms – banksii and pumilio. In this country where Cordyline australis is by far and away the most common form around (called cabbage trees and an icon of our country), cordylines are expected to have trunks and grow several metres tall. When Mark raised the seed from this cross, there was the lucky break which came to be called Red Fountain in the first instance (but also marketed in the US as Festival Grass and Festival Burgundy).

It is clumping, rarely putting up a trunk much above 10cm with exceptionally good colouring in shiny burgundy red which lasts all year round. The narrow strappy leaves are relatively soft and fountain out around the base. In early summer, the tall, arching flower spikes are in pale lilac and highly fragrant.

Cordyline Red Fountain – one of our flagship plants here

We have been delighted at the success of this cultivar on the international market, thanks to the efforts of Anthony Tesselaar International in the capacity of our agent. Less delighted, one might say with the efforts of competitors to come in behind it with ring-ins and substitutes, some even raised from Red Fountain (how we wish they would show some originality and come up with their own ideas) but we are confident that nothing has yet appeared that is the equal of Red Fountain.

Mark has continued with the cordyline breeding, but with the market being flooded with different cordylines from other sources, many proving difficult and unreliable, he has put any further releases on hold.