Fruit Tree Patents with Jeremy Kent Tamsen

What fruit trees are illegal to propagate? Learn about fruit tree propagation law with with Jeremy Kent Tamsen of Washington State University. WSU's Tree Fruit Research and Extension Center in Wenatchee Washington developed and introduced many new specialty crops over the years, including the popular Cosmic Crisp® apple.

During the show, we talk about the WA64 naming contest. Here is the naming contest website link. 

The host of the Orchard People radio show and podcast is Susan Poizner of the fruit tree care education website OrchardPeople.com. 

This show goes out LIVE on the last Tuesday of every month at 1.00 pm Eastern Time. After that you can download the podcast. 

To tune in LIVE (and submit your questions to our expert guests!) you can:

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• (00:00) - Introduction
• (00:59) - Introducing Jeremy Kent Tampsen: The Expert on Fruit Tree Patents
• (02:52) - The Intricacies of Fruit Tree Patents and Their Impact
• (08:22) - Understanding the Process and Cost of Obtaining Plant Patents
• (12:26) - The Honeycrisp Story: Lessons in Patents and Trademarks
• (19:41) - Lessons WSU Learned from Honeycrisp on Trademarks
• (23:11) - List of Patented Fruit Trees
• (24:25) - How Long it Takes to Get a Fruit Tree Patent
• (27:07) - Jeremy's Work in Plant Patents
• (30:23) - Orchard People Sponsors
• (33:37) - Part 2 of the Episode
• (34:50) - Is it Legal to Plant Seeds from Patented Apples
• (39:56) - The Lost Apple Project: Rediscovering Heirloom Varieties
• (42:56) - Should the Public Have Free Access to Patented Fruit Trees?
• (46:31) - WA 64: WSU is Introducing a New Patented Apple Tree and Naming Contest
• (49:28) - What Happens to Test Trees that Aren't Good Enough to Market?
• (55:44) - Learning More About WSU's Breeding Programs
• (59:25) - Closing Thoughts and Future Episodes

Creators & Guests

Host

Susan Poizner

Author, fruit tree educator, and Creator of the award-winning fruit tree care education website OrchardPeople.com.

What is Orchard People?

Learn how to grow and care for fruit trees with fruit tree care educator Susan Poizner of OrchardPeople.com. Discover how to create permaculture plantings, food forests, and forest gardens in both urban and rural settings. Meet experts on all aspects of comprehensive fruit tree care, including pruning, pest and disease prevention, fruit tree grafting and budding, and soil management.

Show host Susan Poizner, creator of the fruit tree education website OrchardPeople.com, is an award-winning author of three fruit tree care books and an ISA Certified Arborist. This podcast is the winner of the 2021 GardenComm Silver Award of Achievement for Broadcast Media: Radio Program Overall. Learn more and access archived episodes at https://podcast.orchardpeople.com/.

Learn more about Susan's books and courses at https://learn.orchardpeople.com/books.

#103 Fruit Tree Patents with Jeremy Tamsen
Introduction: The Importance of Fruit Tree Patents in growing and grafting fruit trees.
Hey everybody and welcome to the show today. Welcome to Orchard People.
Today we're digging into a topic that may actually surprise you. We're going to be talking about fruit tree patents. Now everybody knows that when it comes to art or writing, it's not okay to really copy somebody else's work.
Did you know that it's actually very similar, or can be, with fruit trees as well?
So if you're propagating fruit trees, there are some trees that you are actually not allowed to propagate. And that brings up some questions. When you go to a specialist fruit tree nursery or any nursery, how do you know that the fruit trees you're buying are actually going to be legally propagated?
Or if you're going to take a clipping from a neighbor's tree and then graft it onto your own tree, or make new trees, Are you going to get in trouble? Is that actually legal?
Introducing Jeremy Kent Tampsen: The Expert on Fruit Tree Patents
So, that's what we're going to talk about today, and I have a really interesting guest.
So, Jeremy Kent Tampsen is from Washington State University, and he's an attorney, and he's the Director of Innovation and Commercialization for the College of Agricultural, Human, and Natural Resource Sciences.
So, the college does a lot of things, they have a broad mission, and they have a broad vision. So, I'm going to introduce you to Jeremy Kent Tampsen. But one of the things they focus on is agricultural innovation, and as part of that mandate, they do introduce new varieties of crops to the market.
And one example is something that you may have heard about in recent years, and that's the Cosmic Crisp Apple, which is really quite tasty.
So Jeremy is going to talk about fruit tree patents and how that may affect us as smaller scale growers. I'm going to talk to Jeremy in just a minute. But first, I want to hear from you. I would love it if you could email in your questions or comments during the live show and I'll ask Jeremy. Or you can even just email us to say hi.
We'd love to know that you're out there. Just tell us your first name and where you are writing from. So the email is info, I N F O, at orchardpeople. com. That's info at orchardpeople. com. And include your first name And YouTube as well. Sadly, that did not work for me today, so I'll have to figure that out for next time.
But in the meantime, I really hope we'll hear from you at info at orchardpeople. com. So Jeremy, welcome to the show today. I'm so happy to have you with me. Thank you so much, Susan. I'm happy to be here. Thanks for having me.
The Intricacies of Fruit Tree Patents and Their Impact
Yeah, so it's such an interesting topic, the idea of fruit tree patents. Now, fruit trees have been growing for as long as Time has been going on, right?
So why are we talking about fruit tree patents? When did this whole thing start? When did plant patents start? That's a good question, it's one of the key tenets of the United States Constitution, in fact, that inventors should be rewarded for their hard work in inventing new things, right?
And the, like I said, it's part of the actual constitution, part of the original constitution, not one of the amendments. So. Think about that. it was that foundational to the, folks who were setting up the laws of the United States to recognize that principle that had been, begun to develop very heartily in Europe by that point, and in other places.
plant patents are a reflection of the idea that plant varieties, That are, especially those that are well adapted to a particular growing region, or for some particular commercial purpose, take a lot of work to develop and select. So, as an example, in 1996, when Bruce Barrett made the cross for Cosmic Crisp, he took the pollen from an Enterprise, apple tree, and he put that into the flower of a single Honeycrisp tree.
One single honeycrisp flower, and that cross, each one of the seeds from that individual apple that was created by that cross, each one of the seeds, when planted, will create a different apple tree. We'll be in the same family, but just as you and if you have siblings, you're going to be different from your siblings, but perhaps have some of the same characteristics, you will be different.
And, identifiably unique. And apples have a very broad range of characteristics at the fruit level. and so they vary a lot from one to the next. So that cross, they planted all the seeds from that apple, and they planted the seeds from a bunch of other apples, and over 20 years monitored over 3, 000 crosses.
examining them for, Growth characteristics, examining them for fruit quality and fruit production, examining them for pruning and for growth habit, examining them for suitability for commercial production, looking at root stock pairings, looking at how the fruit stores and cold storage or controlled atmosphere storage.
the evaluations are exhaustive, but it's important to remember that. It's just a. It's like a buckshot, right? You're looking at just literally thousands of different crosses looking for the one that you want. You're not doing development work. We're not talking about genetic modification here, or even mutagenic work.
We're just talking about sheer volume to try to find a diamond in the rough that then can be tested and can be determined how to grow it the best and how to get it up to a modern. For the standards of a modern variety, so all of that work, understandably, should be, we should be able to leverage all of that work, and the law recognizes that very obvious conclusion or that very, intuitive conclusion.
So, It's interesting what you're saying. Your introduction is incredible because it makes me understand that it's way more than just having a delicious tasting apple. That's right. I've been in a test orchard before where I'm like a kid in a candy store. All of these apples have been selected by their genetics to be delicious and crispy and juicy.
So every apple has a different color or shape or flavor, but they're all crispy and juicy. And I'm like, I would want to propagate every single one of these and yet what you're saying is that's not just what you're looking for. You might be looking for disease resistance. You might be looking for ease of pruning and then like you say, all sorts of different things, rootstock.
So there, it sounds like there is a lot involved. It's a big deal. it's a big deal and that's You know, that's demonstrated by the long timelines that are required to go through this selection process, and this testing process. So, yeah, when we get to a point where we're ready to release one of these very, carefully selected, very carefully evaluated cultivars.
We do want number one, to be able to capitalize on that. And number two, to be able to control that so that the quality, is what we have selected for by the time that it reaches the consumer. And in, in order for us to have that control and to set standards, we have to have some sort of. intellectual property to allow us to do that.
And the plant patents, along with the trademarks, the plant breeders rights, plant variety protection certificates, plant variety rights, depending on where we are, all of those tools are in our toolbox. Amazing. Okay, we got a whole bunch of questions here.
Understanding the Process and Cost of Obtaining Plant Patents
Let's start with Steve. Steve is from Buffalo, New York.
so Steve says, is it really hard to obtain a new patent and is it very expensive? So now Steve may be somebody who might have discovered his own, let's say apple tree. He wants to propagate So is it hard to obtain a new patent and is it expensive? so i'm going to focus solely on plant patents in my response here because While they are administered by the same office in the united states.
They are very different in the way that you have to go about obtaining them. So, a traditional utility patent will have lots of claims. It'll have an extensive background. It'll have an extensive specification that says everything that has to exist before your invention can work and all of the other science that it relies upon.
And then the claims. It'll have a list of claims which are the meat of what you're claiming as your new invention. So in a plant patent, you have the same background. You have a similar specification that describes the other varieties that you use to breed the apple. and then you have one claim that describes with careful detail, the plant itself.
So they're very, different. And the process for obtaining them or registering them is very different because the patent office will be slicing and dicing at the many claims in your utility application Whereas in the plant application, they're really looking for, the distinctness is the highest bar, right?
And so you'll put in all of these characteristics about your plant, you'll put in all of this data, you'll describe where and how you've grown it. You'll describe if it's a tree fruit, you'll describe what root stalks you've tested it with. Basically, you want to put in a bunch of data to demonstrate that you've done a lot of work to characterize the apple as unique.
And as stable, because if it's changing from one generation to the next, then you don't have a stable variety. It's not protectable yet. something is going on there that you're missing. But, they're really, They're very different. And so the plant patent is, I would say, a lower bar to obtain than a utility patent.
And that's especially true because you're really only looking for distinctness. When you go to apply for a utility patent, they're looking for novelty, non obviousness, and utility, right? And novelty and utility makes sense. Non obviousness is a very, nuanced, analysis that can reduce, you might have 30 claims in your initial application, you might get down to two claims by the time that you actually get the patent to issue.
so it's much more of a negotiated process with the Patent and Trademark Office. And, In terms of pricing, is a plant patent gonna be 50 or 5, 000 in the United States? It's gonna be, about 000 on the low end. And that's if you've got all of your data ready to go, and you know the attorney, and you've got a rate sheet, and, Wow.
but again, we're talking about, this is the end of a 20, maybe 30 year process. And if you're going to release the variety on any commercial scale, that amount of, cost is a very small investment to protect the time and effort that's gone into it. Wow. Okay, a couple more emails.
We've got, Barbara is writing. Thank you, Barbara. Listening from Washington State. Dawn here is, emailing as well. Hello. Good afternoon, Susan and Jeremy. Where does Honeycrisp fall in the plant patent world? I just purchased a multi graft espalier apple tree and was surprised to find it as one of the varieties.
This is a great question.
The Honeycrisp Story: Lessons in Patents and Trademarks
Yeah, so, Honeycrisp Minnesota, University of Minnesota developed the Honeycrisp Apple. And, I love this story. So, and, this is a story that informed some of our strategy and releasing the Cosmic Crisp Apple. So University of Minnesota had this variety and it's, a packout rate is on the low side.
In other words, you grow the fruit and you have to cull a lot of the fruit because it doesn't meet consumer quality standards. And that. means that you have to find someone who will buy it for sauce, or for juice, or for cider, or for some other secondary market, product that's not the fresh apple itself.
And for growers, they want to sell the fresh apple because that's the highest value that they get for their production. So they want to make sure that the apples that they are growing are meeting the high grade that's required to hit the consumer shelf. So, Minnesota was slow on pushing the cosmic crisp, or excuse me, the Honey Crisp Variety, out as a release.
'cause they said, oh, it's troublesome to grow. You get this low pack out relative to other competing varieties. It's not unusual to, to see a 40%, coal rate on honey crisp. So that's what they took. So. You're throwing away 40 percent of the fruit, or you're juicing it or something.
No wonder Honeycrisp is so expensive when you buy it in the stores. And so, but yet the consumer demand for it, because it has that nice eating experience, was very high. And so they ultimately released it, By the time that it gained a lot of popularity, so what that was around, what would you say, 2008, 9, 10, we started to really see it pick up steam in the marketplace, and people were planting it like crazy, in part because the University of Minnesota patent expired in 2008.
So, slow ramp up, and then consumers got a hold of it, and they were really excited about it, and so then growers were able to plant. A lot of it, because it was off patent by that point, they didn't have to pay a royalty on it, they didn't have to worry about if they were under a license agreement. And, so University of Minnesota has not made a penny on domestic Honeycrisp sales since 2008.
Now, did they have an option of renewing it, and they just thought, oh, this is not going to be a hit? Once a patent is over? Yeah, time limited reward. We live in a society where we believe that monopolies should be illegal, right? And in fact they are illegal. And yet we have a situation from the Patent Office where we have a federally issued monopoly that's enforceable in federal court.
And so if we think about it from that standpoint, This patent is a time limited reward for that hard work that you did to create the invention with the trade off that whatever you've created and carefully described in your patent application will then become publicly available to anyone, who can read the patent, or who can find the budwood or who can do the experiment that's described in the patent, right?
to improve society at all, right? To, as a whole. So, this is we get generic drugs after a time, and that benefits society. I can go down to the drug store and I can buy very inexpensive ibuprofen, because that's an off patent drug. And so, 20 years is the time limit on the reward. And so for trees, does that make sense?
That takes a long time to grow trees. It takes a long time from the time we file the patent until the consumer can buy the Apple. So for a drug, does that make sense? It has to go through a lot of human testing and the meanwhile, their patent timeline is ticking. and so they may have three or four years if they're lucky on the marketplace.
And so new drugs are extremely expensive for that reason. so there's a lot of patent policy behind. The determination that, oh, it should be 20 years, but it was just determined, determination. It was not, there's no, None of this is intuitive because it was simply created by people, creating a system to capitalize on this hard work that goes into inventorship, so.
Okay, so I'm going to dive in. So just to clarify, with the University of Minnesota, they had the patent for 20 years. It came to an end, they couldn't renew it, and that's when it became popular. That's right. So there you go. Yeah. And so I suppose with Cosmis Crisp and with other, cultivars, if you're working so hard to release them, you are going to work so hard to market them.
You will have a huge marketing budget, get it out there really fast. And because otherwise you're just never going to make your money back. That's right. Yeah, we have spent, by we I mean WSU and our licensee, we have, WSU itself has spent over twelve and a half million dollars at the close of, 2023, by the close of 2023 on No, this is just on Cosmic Crisp.
Just on marketing for Cosmic Crisp. Wow. Okay. All right. I'm going to jump to another. Let me finish the story, though, because it gets better. the patent expired. They made it, they made the patent, the title of the patent was an apple tree named Honeycrisp, or an apple variety called Honeycrisp. And so, in doing that, they precluded themselves from, being able to use Honeycrisp as a trademark name.
So, trademark, unlike patent, trademark is used to Give particular rights to those who have developed distinctiveness in some mark that they use on products or services, and the mark is used to identify the source of the product or service so that the consumer can go back, find the same product or service and reliably purchase it again.
You are identifying yourself by a distinctive mark. So trademarks, because they are about acquired distinctiveness, and the connection that the consumer makes between your product and you as the source, those can last indefinitely. It's not a time limited reward. It's a facet of the operation of a business.
And it still benefits the consumer to have strong trademarks because it allows us to reliably find the same goods, right? So, trademark protection can be indefinite so long as you maintain that distinctive, that distinctiveness, right? So you've got to pursue infringers, people who are copying your mark, you've got to, pursue people who are using, marks that are confusingly similar to your mark.
There is some enforcement, some policing that goes into it that's up to the trademark rights holder. And so we did not make that mistake.
Lessons WSU Learned from Honeycrisp on Trademarks
We filed the plant patent in the title of an apple tree called WA 38. Which was its selection name. And we have a trademark on Cosmic Crisp in many international classes.
Trademark is broken up into different categories so that presumably if we wanted to use the same trademark on different goods, we could use it and come to an agreement between each other. Our customers are different enough. Our products are different enough. Our logos are different enough that consumers won't be confused that my, cleaner, my Clorox cleaner, isn't the same thing as your fresh fruit.
but, so we've, any product that we do sell or want to sell, we have a registration for Cosmic Crisp. And I'm just going to dive in, because I'm not understanding. So just for me to follow, If Honeycrisp had, done a trademark on the name Honeycrisp, then people would be able to take budwood and propagate it, but they wouldn't be able to call it a Honeycrisp apple.
That's right. They could call it something else. And I could be the only one producing Honeycrisp apples. Because I have the name. And so what you guys did at WSU with Cosmic Crisp is you made sure you were like, I'm not making a mistake, that mistake. We are going to trademark the name honey, Cosmic Crisp.
So when our 20 year patent runs out, we're still the only ones with, Cosmic Crisp. Other people can propagate it. They can put it on different rootstocks. It might start tasting different. we have no control. But they can't call it Cosmic Crisp, am I right? That's right, and we still have contracts with all of our growers, and so we will try to maintain control as much as possible over the budwood, even once the plant patent expires.
and, yeah. The other, thing is that the Cosmic Crisp trademark allows us to retain control, quality control, over the fresh fruit that does meet Or that does make it to the market. So, okay, we can set, there's grade standards, but then we have our own quality control standards that relate to the trademark licensing.
So, you can't sell fruit unless it has a starch rating that's under a certain amount and it has a dissolved sugar rating that's above a certain amount, right? Because we know that this apple comes off the tree starchy, and the starches degrade in initial storage, in cold storage, right? And the apple is, not ready to eat until that initial cold storage period is over.
So, we are able to set a quality control standard around that starch degradation, that starch translation into sugar. by having control over the trademark and how it's used. So you can't put a Cosmic Crisp sticker on the apple unless it meets the trademark standards that we set. So that allows us to go into more depth and make sure that what fruit that does reach the consumer is, is really good.
And by the way, just to compare, the packout for Cosmic Crisp is really high. We do about an 80 percent packout on Cosmic Crisp. In other words, 20 percent go to Kohl, roughly. Interesting. Okay, let's pop in. We got a whole bunch more questions we'll go through. Sorry, that was a while ago. Next one. It's such a good story, though.
You had to tell that one. That's a good one. Okay.
List of Patented Fruit Trees
so next one is from Alan, who writes, I don't know where Alan's from. Hi, Susan. Is there a list of fruit trees that are under patent? Thank you, Alan. So yeah, the plant patents are all searchable on the USPTO. gov website. Okay. you can also look in other places like Google patents will show you plant patents as well.
But the most thorough database is the USPTO database. We're talking about the U. S. there is also, I mentioned plant variety protection certificates. That's a, you, another. form of U. S. protection that is now also applicable to asexually propagated varieties. It used to only be available for sexually propagated varieties, and they also have a listing.
You can go in and look under Malus Domestica and find all of the, I think there's only a couple so far, but you can see the trees that have been registered under plant patent, or excuse me, plant variety protection certificate as well. So you can also see when they expire. That's right. And so you can.
Yeah. Yeah. The Plant Variety Protection Certificate Database is on the USDA website.
How Long it Takes to Get a Fruit Tree Patent
Okay. All right. We got an email from Shaw. Hello, Susan. Very interesting show today. We're listening to you from Atlanta, Georgia. How long does a new patent take? Thank you. Yeah. So once you've done all that 20 years of research, you're ready to fill out the paperwork.
Yeah, good question. How long does it take for you to get the patent? Yeah, so you apply for it and then you wait. The, the patent office is really busy, unfortunately. and you balked at the cost of a patent. Only a tiny portion of that is, It's like the actual fee that goes to the patent office.
The rest of it is like attorney fees and preparing the documentation. so they're underfunded and they basically are understaffed and they're always hiring and they can't get enough qualified people to come and work at the patent office. and so it takes a long time. You write them your, very fancy, complicated, expensive letter and it takes a long time before they even open it.
and I'm talking digitally, but you know what I'm saying. so it, we usually in our, timelines budget about a year from filing to registration. It can be shorter than that. but for us, that gives us enough time to make sure that. Things are going to go through properly and that we can respond to any questions because sometimes they will come back and they'll say, oh, we need more data on this characteristic your, chart wasn't clear.
We couldn't read your note. where's your lab notebook page from this day? they will ask you some questions because again, what you're, asking them for is a monopoly on a, plant. So it's a little bit, it's a little out there. so, they, the bar is pretty high, but yeah, we budget about a year.
Okay, we got one, an email here from Gordy. Hello Susan, enjoying your radio show today from Honolulu, Hawaii. Missed the contests. So Jeremy, you don't know this for, this radio show, has been going out for Four years, five years now, and we, until very recently, had a contest each time, and, I, I mentioned in a previous podcast that, I'm not doing it anymore, just because it was super fun, but it's hard work to get the prize donated, and then get all that organized, so, in, for my own sanity, sorry, Gordie, no more contest, at least not for now.
Now, we've got a question from Gloria. Okay, Susan, is your guest today a generic patent attorney or just for fruit trees?
Jeremy's Work in Plant Patents
Well, that's a great question. So yeah, you can tell us a little bit more. I'll make a fine distinction here. So I'm actually not a patent attorney. So there are two types of registered attorneys.
One being the attorney like I am, and one being the patent attorney. Patent attorneys are limited to being able to file patents for other people, and to litigate those patent applications or patent registrations before the Patent Trial and Appeal Board, which is a Article IX administrative court operated by the U.
S. Patent and Trademark Office, which is a complicated way of saying that it's not like a court of law with a judge there's like an administrative law judge and it's handled under different practice and procedure rules. those who are registered as patent attorneys cannot go into a court of law and represent a client like I could.
on a matter of general legal import, like a patent application or a patent registration. To be clear, I do not, act as counsel for WSU. I act as an advisor, because of my expertise in the area of plant patents. And my, expertise in that area began in potato, actually. and, my expertise in plant variety protection certificates grew out of wheat.
when I worked for the University of Idaho, those were our two biggest, focus areas in terms of developing new crops. and when I started at Washington State University, I was able to break into the tree fruit world where we have licensed apples and cherries. and we're working on pear rootstocks.
We're trying to develop dwarfing pear rootstocks, which would be a huge deal for, the pear industry. and we also have some other, asexually propagated varieties that are not tree fruit, like raspberry, is big here as well, so we have a big, machine harvest and frozen raspberry production in Washington, so anyway, that's a little bit about my specialty area and how it came about.
Well, great question, Gloria. So, let's go, we're gonna listen to some, commercials in just a minute, but there is so much more I want to talk to you about, Jeremy, because there's the issue, you spoke earlier about growing from seed, and we've been talking about asexual propagation, we've been talking about grafting, if somebody, I can buy Cosmic Crisp apples here, In Canada, even though nobody can grow them in Canada.
what if I were to start a seed and create my own tree? Is that okay? I have so many questions, but let's talk about that after the commercials. What do you say? Are you okay hanging in there for a minute? That's great. Okay, that is perfect. You are listening to Orchard People, a radio show and podcast brought to you by the fruit tree care training website, orchardpeople.
com. This is Reality Radio 101 and I'm Susan Poizner, author of three fruit tree care books, Growing urban orchards, grow fruit trees fast, and fruit tree grafting for everyone. And we're going to be back right after the break.
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Part 2 of the Episode
Hi again, everybody. You're listening to Orchard People, a radio show and podcast brought to you by the Fruit Tree Care Training website, OrchardPeople.
com. This is Reality Radio 101 and I'm your host, Susan Poizner. So in the show today, I've been talking to Jeremy Tampsen, Director of Innovation and Commercialization for the College of Agricultural, Human, and Natural Resource Sciences at Washington State University. We've been talking about fruit tree patents and about whether or not it might be legal to propagate or graft any particular fruit tree.
If you want to just grow that fruit tree in your own backyard. So we're going to continue our conversation in just a minute, but first I want to hear from you. If you are listening to this show live, please send us an email at info, that's I N F O at orchardpeople. com. Send us an email with your question, or a comment, or I'd love to hear from you, just, send us an email to say hello.
And be sure to tell us your first name and where you are writing from. So that's info at OrchardPeople. com, and we hope to hear from you soon.
Is it Legal to Plant Seeds from Patented Apples
So Jeremy, we've been talking about the Cosmic Crisp Apple, which WSU released in, when was it, 2012? Yeah, that was the release here. and then plantings ramped up really quickly.
so quickly, in fact, that it was the fastest produce fastest growth produce item ever in the history of mankind. We went from 0 trees and commercial plantings to over 22, 000, 000 trees in the state of Washington alone in under 5 years. Wow. Wow. That's amazing. So, very quickly, you got it out there. Now, I can get this apple here in Canada.
I can eat it. I can save the seeds. is it okay for me to grow out those seeds into a delicious little tree? Whatever it's going to produce, I know it won't be exactly a cosmic crisp apple. Yeah, and it might be very different. In fact, like I said before, when we were talking about the breeding and selection process, apples have a very wide range of characteristics, even within the same family.
So I mentioned that. Each seed from the original cross, we put enterprise pollen into a honeycrisp flower and grew an apple out from that, that cross. And each seed is a different apple. It's going to produce a different apple tree, even within the same, that one single apple. So, Who knows what pollen made its way into the apple flour that produced the apple that you bought from the store.
a lot of orchards will use crab apple as a pollinator or a pollenizer, excuse me, and or other varieties that are attractive to the bees that are in their area. so it just depends a lot on. the cross is going to be as among the flower and the pollen every time, for each individual apple.
Only the flowers that get pollinated, produce apples, and it's going to be different genetics every single time. Our patent protection runs only to the seeds that If it were possible, the seeds that had the identical DNA that the tree fruit itself, or that the tree itself had, our protection is limited to that organism, that exact organism, so it does not extend to the pollinate, the pollinated seeds.
that came from, that are going to have different genetics than the Cosmic Crisp Apple. Okay, so I'm not going to get in trouble then. Yeah, you won't get in trouble. I'm not saying I did it. And when I was a kid, one of the very first plants, I think it had to have been the first plant I grew, was an apple plant from a seed.
And I collected my apple seeds for two weeks. my grandma was visiting. I'm talking, I was like five years old and I was so excited. I got a little styrofoam cup from the gas station and we got some potting soil and I planted probably 15 seeds in this little thing. And at least one of them propagated and germinated and grew.
And I. planted it at one of the houses we lived at over the years. It's still growing. I don't know if it's ever produced any fruit or not, but who knows what kind of, which one of the seeds it was or what the cross was from those seeds or whatever. Who would know? so yeah, you're, not going to get in trouble.
Yeah, I'm glad you weren't there as a little five year old. I can just imagine the patent police coming to arrest you, this little five year old. Hey, that was a Macintosh. Those Canadians, they are in charge of Macintosh. You shouldn't be growing that. So, we've got a lovely, message here, an email from Fret.
Loving the show. Interesting. Hello to Susan Poizner, listening to you from Chan, Wyoming. Very interesting today. Love the show. Thank you so much. I love the feedback. I love knowing who's out there. That's why I'm really sorry that somehow we didn't manage to get on YouTube this year. This month. It's a new thing for the YouTube live streaming.
We'll get back on there again. It's just me figuring it out. I'm not super technical in that way. okay. So you told us how we can find out what apples are protected. We haven't talked about all those amazing heirloom apples. when you go to a specialist fruit tree nursery, you can get incredible apples that were grown 100 years ago.
So I guess everything's okay with those. We don't have to worry about propagating those trees. That's right. And that's good.
The Lost Apple Project: Rediscovering Heirloom Varieties
There's a, very interesting project going on across the Pacific Northwest right now called the Lost Apple Project. so this is funded by a big group of folks, and it's being, by the Whitman County Historical Society.
So Whitman County is where Pullman is located in Washington. and they're going around and finding, they're trying to uncover varieties that have been lost to time. So we know that a lot of folks came out to settle this area and they brought apple trees with them as a way to create. ciders and other, products that would sustain them through the winter.
And, there are big orchards planted in a lot of places. So, you can learn about the Lost Apple Project with Dave Benskoder, on the Whitman County Historical Society's website. but they've found, something like 15 varieties that were thought to be extinct, that were, commonly propagated, and they have historic records that show, that people were growing these.
And they've come out and they've found them, cleaned up the trees, got them to produce apples, been able to test the apples, been able to genotype the trees. been able to do a lot of work to with the ultimate goal of adding to the overall genetic diversity that's available both to orchardists as we have new climate and disease pressures, encroaching into our growing areas, but also to breeding, programs like the breeding program at WSU.
so yeah, there's a growing number of them is my message and it's very exciting to see you. pink fleshed varieties and, different greens and different golden skinned varieties, come out of this project that were thought to have been lost. That is so exciting, and I definitely think that's a wonderful topic for another episode of the show, because I think it is exciting, and again, when you enjoy the flavors of different apples, it's just so different from what we get today, which I really do enjoy.
Crispy, juicy, and sweet. I love it, but there's so much more than an apple can be, if you open your mind to it. Yeah, and I want to make a plug for those of you who are in the state of Washington or even close to Whitman County. the, Steptoe Butte State Park, Washington State Park, has one such lost orchard planted at its base.
The land was privately owned for a long time and, along the way there was a big orchard planted there and you can just walk through and see a pretty wide variety of different apples, some of which are the subject of the Lost Apple Project. Oh, fabulous. That is so interesting.
Should the Public Have Free Access to Patented Fruit Trees?
All right, we had, there was a whole bunch of chatter on Facebook before this show.
And there were some really interesting comments. one of them was, Paul in Michigan. And Paul believes, well I'll let him speak for himself here. Paul says, I will graft any fruit if given a scion. I would freely pass out scions of any fruit trees I own, patented or not. Thanks. Fruit tree genes belong to everyone.
Many of these patented fruit trees come from breeding programs at major public universities. My tax dollars and tuition fees are used for these programs. Because of this, these plants belong to the public, not to a small group of commercial orchardists or commercial orchards. There was a whole bunch of chat that resulted from that one comment.
And I know you mentioned this before, but what, if you were sitting at a, cafe and talking to Paul, what would you say? I would ask him how else we could sustain our breeding program, number one. He's right that our breeding program at Washington State University for apples is publicly funded. But to be more, and to be incredibly specific, our apple breeding program is funded directly by the Washington Tree Fruit Research Commission.
What's that? It's a body that levies a checkoff dollar on apple growers in the state of Washington. So apple growers in the state of Washington, for every pound of fresh apples they sell, they have to send some of that money to the Tree Fruit Research Commission. And that's a decision that the apple growers themselves came to as a way to sustain the breeding program that didn't exist at the time in Washington, at Washington State University.
So. public dollars, but perhaps not your tax dollars, did pay for the development, the breeding and selection of this apple. And for that reason, only Washington growers can access Cosmic Crisp. we do have it propagated in international, markets as well, but that propagation is very slow to start.
because it takes a long time to get through quarantine in different countries. because we're talking about a live plant. but the key message here is that Washington state growers, apple growers, paid a lot of money for the research that went into this apple. And they are the ones who are benefiting from that investment.
And the only way to make that possible is through plant patent protection. And I won't apologize for that. in other breeding programs, the funding might be different, right? and so perhaps that criticism could be heard and dealt with in a similar manner as we've dealt with the funding for our apple breeding program.
But as a public institution, we make it available to any Washington grower that wants to grow it. they all have, hand in investing in it and that's part of the reason why the, plantings were so explosive is because this is a Washington product through and through funded by the Washington growers created by Washington State University and thankfully, sold to the world because it's such a delightful product.
so. Without the plant patent protection, none of what I just described would even be possible.
WA 64: WSU is Introducing a New Patented Apple Tree and Naming Contest
Okay, so on that note, now I know it takes a long time to develop apples, and that there are other crops that can, you can do have a quicker turnaround. But you guys do have another apple coming out in the works.
We do. And it doesn't have a name. So what's it called right now? And what's the story? It's called WA 64. So, this is a cross between, it was, Pollen from a Crips Pink, better known as Pink Lady. But specifically it was from a Crips pink tree, into a honey crisp flower. and we don't have a name for it yet, but we are seeking input on that name.
so folks can visit www.wa64contest.com.
I'll highlight that it's only for U. S. residents because of our constraints on prize, prizes as a public, institution. and we have received, the last time I checked, we have received over 16, 000 submissions to the contest. and it's open until May 5th, so you still have a few days to come up with something creative.
and we're looking for something that, Alludes to the state of Washington, or its history, or its culture, or the characteristics of the apple itself. so that's carefully described on the website, and you can find more information there. And so how can people know about the characteristics of the apple if they haven't tasted it?
So that's, you're right. It's hard to describe, but words are powerful and that's why we're here today, right? So, the words on the website do carefully describe the apple's characteristics. There are photos there as well of both the tree and the apple itself. and so we're, we're still pretty far away from consumer availability.
So at this stage, we're looking for a name we've filed and obtained the plant patent. we, will be. We're hoping to have trees coming out of nurseries for growers by 2026, and that will mean, fruit will be in the store by 2029. So we're still a ways away from having enough fruit to distribute, so that was one limitation of the contest that we recognize.
But that fruit is still being used. we're using it to do early marketing with the companies who will be ultimately growing it, packing it, processing it, shipping it, selling it, all of that stuff. that's where all of the, this year's fresh fruit is going to an industry, industry excitement plan that we developed, with the advice of the, Washington Tree Fruit Research Commission.
What Happens to Test Trees that Aren't Good Enough to Market?
Well, I think that's super exciting. I must say that when I visited, the Vineland Research, that we've got one apple, developer in Ontario, and that's Rachel LeBlanc, who I do a virtual tasting with every year. She's so interesting. And the apples that she develops are so amazing. And there's one that I fell in love with the tree.
and the fruit. It was just so delicious and I called it Fizzle Pop. That was my, that was the Susan name for it because I felt it was almost like effervescent. You bite, bump it, you bite into it and it's So to pop and it fizzled in your mouth and it was so yummy and it breaks my heart to know that if it's not chosen, which it probably won't be eventually the tree will be dug out and thrown away and nobody will ever get to try it.
But the lucky thing is I got to try it. So there you go. But, people might say, Hey, actually, and that is a good question. these in the research stations, you'll have thousands of trees, many of them producing really nice tasting fruit. And it has to be dug up and thrown away, can't you just share those, or scion wood from those trees with home growers and let them, grow the, what, why can't you let the scion wood free, even if you're not going to choose it?
Yeah, there is still liability in that, right? So, we'll take Washington as an example, and the apple, industry here. is huge. we produce six out of every 10 apples in the United States. And, so if we have a nice tasting apple, that's only one facet of our evaluation, right?
and a big part of our evaluation too, is, how does it actually grow? Is it adapted to the region? Does it carry pests? does it allow disease to spread, to not only grow, but to spread, right? so the risk is that, that nice tasting apple might, carry a disease or might be a disease vector or a pest vector for the other productive apples in the area.
And so we're always, as much as it would be nice to be able to grow these experimental varieties, they are just that, they are experimental. And the genetics don't guarantee anything. just because you have two good parents, you can still make an ugly baby, and that can be true of the apples too.
So, I think what I said when we were talking about this before was that it's very important for us to be mindful of our neighbors too, as we produce these apples and as we grow them out and we sell them to other people. they all have neighbors, they're all growing other varieties.
So it's important for us to release trees that, have really strong genetics, have really strong, are very well adapted and have strong resistance to common disease and to common pests, because it can impact more than just that one tree. Yeah, I hear you. I hear you on that. Now, I know. So and another example too is that the tree, I, tried a great, I was able to go out to our experimental orchard, in November at the peak of, all the apples were still on the trees, and it was just beautiful, and we were walking through their so called diversity block, which is our apple breeder's sort of cabinet of different varieties that she keeps on hand, and there's Between 300 and 350 varieties out there and they're planted in pairs as like a backup.
and they're spaced out so that they don't affect each other and they can observe the growth habits And it's it does not look like a normal orchard. It looks more like a field with these trees, you know randomly stuck in there And we're walking through and just picking the apples, like you said, and just tasting, picking the ones that looked interesting.
Of course, you can't taste all of them, right? but I was looking, okay, man, there were these, there were some that were so red, they were almost purple, they were so dark. And these really big apples, and I said I want to try one of those. She said, oh yeah, go ahead, because some of them I couldn't try because she's watching them, and she's needing to harvest the fruit to do evaluation on the fruit, and so we couldn't pick from some of them, but we could pick from most of them, and so I picked And ate it and it was just really thick, tough skin on the outside and really mealy soft on the inside and she just, she knew and she just saw the look on my face and she said, it's okay to spit.
And I said, Oh man, she said, yeah, you know what you're looking for might not end up being what you think it is, and. So like another example was we had one that she's really looking at really carefully for release that's a yellow skinned apple and one next to it that, to me, they looked exactly the same and she said, yeah, they pretty much are very similar.
This one. is the reverse cross from this one. So the mother is the flower and the pollen is the dad, and it was the reverse cross from the one next to it. And she said, yeah, they look, they taste very similar, but this one doesn't store at all. In cold storage, it just goes completely soft. so you got to eat them fresh or you can't eat them at all.
And. So it's you just, you never know. You never know what it's going to, what it's going to turn out to be. and that's why we're very careful about, we want to have, it goes back to that trademark, that distinctiveness, that product association, right? We want to have a positive association with the WSU name and the varieties that we release.
So we're very careful about what goes out the door.
Learning More About WSU's Breeding Programs
Jeremy, I really, appreciate this conversation. You've given me a deeper understanding of how, much time and money and effort goes into developing different varieties. and I've learned a lot. where can listeners go to learn more about what you guys are doing in terms of developing apples and other, crops?
Yeah, we have a really great, tree fruit website. if you just search WSU tree fruit. you can find it. I'll put it's treefruit. wsu. edu. That's the Comprehensive Tree Fruit website. There has all of our events. it has a really great newsletter that goes out. each month as part of the website, and you can learn more about what we're doing currently on, there.
You can also look at the research that we have going on. you can learn about wasp 64. You can learn about cosmic crisp, and you can learn about our breeding program as well. So, we have a really robust program of breeding and research, and that is the comprehensive place for all things tree fruit.
we also have, A really nice tool on there, the AgWeatherNet, that, gives really, closely, localized, information about, weather for agricultural producers. so that's also on the, TreeFruit website. And then we also have big breeding programs. We're really big in wheat. we have some of the nation's most successful wheat varieties, some of the PNW's most successful wheat varieties.
We have barley, a great barley breeding program as well, and we're hoping to get some new malting barleys out within the next couple of years. So that'll be really interesting to see. and we do participate, in the post harvest evaluation process in the. Pacific Northwest Tri State Breeding Program with Oregon State University and University of Idaho.
So I still work in potatoes as well. So those are like our other big breeding programs. I mentioned raspberry as well. We do big time support the raspberry production in Washington. And we just, we're just on the verge of releasing harvested raspberry. We developed a variety, or we bred a variety here, that is really suited for fresh pick and is not suited for machine harvest.
And so we're actually releasing that in Canada, right on the first, shot along with Washington State. So, that'll be a unique approach for that new raspberry variety, which does not have a name yet either. Well, there you go. Well, Jeremy, thank you so much for coming on the show today.
I can't believe it. It's already been an hour, and we're gonna sign off, but thank you for coming. I really appreciate you spending the time. It's been my pleasure, and thanks to everybody who sent in questions. This is what makes this job exciting to me, and it helps me refine my understanding of the world.
of the law and how it applies to different situations as well to think through some of the things that come to the minds of the folks who are listening. So really appreciate all of the engagement today. That was a lot of fun. And thank you Susan for helping put all this on. It's great. Thank you so much.
So that was Jeremy Tampsen, Director of Innovation and Commercialization for the College of Agricultural Human. and Natural Resource Sciences at Washington State University.
Closing Thoughts and Future Episodes
And this is the Orchard People radio show, and we are pretty much wrapped up for today. If you want to see a video version of this episode, we're going to edit in some pictures.
You can watch it again, just go to Orchard People, the YouTube channel, the Orchard People YouTube channel. And click on subscribe while you're there. And so in the next few days, I'll be posting the video version of this podcast, and there'll be lots of images in there also to follow up. You can go to Apple podcasts and look for orchard people.
If you want to listen to previous episodes of this show, we've got so many other great interviews and conversations. And finally, I'd love it. If you could go to orchard, people. com slash. Sign up, and that way I can send you an email once a month to tell you what the episode is going to be about that month.
You'll have advance notice, almost a week before, so you know when you can tune in and ask your questions. And as Jeremy said, your questions make all the difference. I find that my listeners have way better questions than I do when it comes to my guests. So go to orchardpeople. com slash sign up to sign up for my monthly newsletter.
And that's it for now. I hope you'll join me again next month when we're going to dig into another great topic. I'll see you then.