Lawyer (Dracaena deremensis 'Warneckei,' 'Ulises,' 'Jumbo,' 'Bausei,' 'Skunky')

I debated for a while whether I wanted to treat each of the Dracaena deremensis varieties individually or collectively. Some of the decision was made for me already, by the fact that one of the earliest posts was for D. deremensis 'Janet Craig,' the single variety by itself, but, you know, my blog my rules, so if I wanted to lump the other seventy thousand of them together into one post, I could do that.

I decided 'Warneckei' deserved its own post, because it's a pretty widespread variety, that's been around for a long time, but then I had to add in 'Ulises' (sometimes 'Ulysses') and 'Warneckei Jumbo' and so forth, because they look so much like 'Warneckei' that I can't tell the difference, and I may as well treat them all the same on-line if I can't tell them apart in real life. We'll get to what 'Bausei' and 'Skunky' are, and why they're included, later.

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The difficulty then becomes, so what to say about them. I more or less covered care for D. deremensis in talking about 'Janet Craig' (the short version: don't overwater, don't let fluoride build up in the soil, don't get it too hot or too cold); the pattern of variegation was explained (or at least talked about a little) in the process of writing the Sansevieria trifasciata post; I like to rescue 'Warneckei' Dracaenas but I've already touched on plant rescues in the profile D. fragrans 'Massangeana.' (Though I hope someday to write a post about how to tell the difference between a rescuable rescue plant and a lost cause. So there's more to be said about rescue plants.)

My own personal connection with D. d. 'Warneckei' has to do mostly with sunburns, mutations, and the law: my most successful rescue plant to date is of a sunburned 'Warneckei' from last August or so when I started my job at the greenhouse. The plant in question had been so hot that it had bleached pretty badly,¹ and it had been struggling with this for so long, WCW eventually threw it in the trash. So I fished it out, dusted it off, brought it home, and have been slowly bringing it back from the brink, and it's doing very nicely for itself, relatively speaking. Once it finally outgrows the last of the original scorched leaves, it should be quite handsome. (The picture above is the most recent one I have of the plant in question. It's doing okay, considering what it's coming back from.)

Longtime readers have heard about the mutations part already, but for everybody else: we had a 'Warneckei' at work that had to be cut back last fall, and the part that was cut back resprouted in a different pattern of variegation than the parent had. It was kind of a big deal. The original post about it is here, and this is what the plant looked like by late April 2008:



Which brings us to the law. I was excited about the sport, which is pretty sweet-looking, and I thought possibly that we might have something actually new, and my boss would be willing to share the windfall from the new patented variety out of the goodness of her heart or whatever, in gratitude for me calling the sport to her attention, and everybody would live happily ever after.

Sadly, my research for this post has turned up a very similar-looking plant, called D. d. 'Skunky,' which arose one state away, in Manitowoc, Wisconsin,² in 1973, and which was patented by Roy J. Kreiser. Kreiser appears to have filed the patent and then . . . I don't even know. I couldn't find anything else on the plant, or on him, but I did see the original patent application at the above link (requires free registration), and the incredibly poor-quality photos (color pictures, transferred to print, then Xeroxed, it looks like, for several generations' worth of black and white copies, before finally being transferred to a .pdf file.) do make it look a lot like 'Skunky' and our boy are one and the same. The patent application was originally filed on 6 Feb 1986, and published on 19 May 1987, so any rights Mr. Kreiser may have wished to exercise on the selling of the plant have now expired (plant patents are good for 20 years), and the plant is in the public domain.

I was unable to turn up any pictures of any currently patented Dracaena variety that had this particular coloration, either. The original patent mentions 'Longii' and 'Bausei' as the varieties most comparable to 'Skunky,' and 'Longii' appears to have vanished from all the earth except for two webpages which are either in Japanese or Korean and have no pictures. (I think Japanese.) I found one picture of something calling itself 'Bausei,' on a list for what was apparently a horticulture class, which I suppose I can see how it's kinda similar to 'Skunky' –

Dracaena deremensis 'Bausei?' Photographer unknown. (Link to site)
– but the similarity isn't particularly good. 'Bausei,' the patent filing tells us, is essentially like 'Skunky' except that the midribs of the leaves, and the undersides of the leaves, tend to be green. Part of the reason 'Skunky' is so cool is that the white in the leaves is pure.

So 'Skunky' is in limbo, I guess. Probably sellable, but also public domain. Maybe we could try to re-patent it, but it's still been done before: I'd have a hard time coming up with a reason why our plant, let's call it Dracaena deremensis 'Subjunctive,' is substantially different from or superior to 'Skunky.' At this point, it would be hard coming up with any plants to compare, since there's only the one 'Subjunctive' plant, and I'm not positive that there are any 'Skunkys' left in the world -- all I know for sure is that there were some in 1987, and 1987 was a long time ago. And, anyway, the official patent legalese says that you have to make an effort not to attempt to patent something which is substantially similar to a previously-patented variety, and there are a lot of steps in the process to ensure that this is the case. It could be that 'Subjunctive' is a more vigorous grower, or has superior pest resistance, or something like that, but I don't think we actually have the ability to test that right now, and even if we did, of course, it could just as easily go the other way: maybe 'Skunky' is the superior version.

Urgh. Now my head hurts.

Plant patenting is a weird world. The actual filings aren't that complicated, really: there's a line for who is filing, what they want to call the plant, and then space for a very long and detailed description of the plant. How long are the leaves, what proportions of the leaves are what colors (the applicant even has to describe the colors of the plant by reference to some official, standardized system of colors, like in the case of 'Skunky,' the colors are standardized with reference to the "Exotica Horticultural Color Guide." Whatever that is, or was.) One also has to describe the origin of the plant being patented, whether through a cross of two other known varieties or through a sport mutation, like 'Skunky.' (New varieties of Dracaena deremensis seem to arise exclusively through sports, by the way.) Photo documentation also seems to be required, though I question the usefulness of pictures that look like this:

I mean, seriously. The description in the text is more useful than this mess.

And then there's a lot of discussion of dimensions, exactly what proportion of the leaves are white, as compared to green, and whether or not the variety propagates true, and what existing varieties are similar to the plant being patented, and how the new variety is different, and on and on. You also have to claim that you are the one who actually "invented" the plant in question: apparently you can't patent a plant on someone else's behalf, though I can't imagine how that would be enforced.

If I'm understanding the guidelines at the U. S. Patent and Trademark Office website correctly, different rules apply to tuberous food plants (e.g. potatoes), which are covered by a whole different bureaucratic mess under the Plant Variety Protection Act of 1930.³ Plants found growing wild, even if they're sports or mutants or natural hybrids with interesting, otherwise patentable characteristics, don't count, either, though I expect that there are probably ways around that.

As far as my own personal interest in 'Subjunctive,' depending on the kindness of my boss's heart and all that, it turns out that there are provisions taking me into account:

Because there are two steps which constitute invention in plant applications, there may be more than one inventor. An inventor is any person who contributed to either step of invention. For example, if one person discovers a new and distinct plant and asexually reproduces the plant, such person would be a sole inventor. If one person discovered or selected a new and distinct plant, and a second person asexually reproduced the plant and ascertained that the clone(s) of the plant were identical to the original plant in every distinguishing characteristic, the second person would properly be considered a co-inventor. If either step is performed by a staff, every member of the staff who performed or contributed to the performance of either step could properly be considered a co-inventor. Thus, a plant patent may have a plurality of inventors. However, an inventor can direct that the step of asexual reproduction be performed by a custom propagation service or tissue culture enterprise and those performing the service would not be considered co-inventors.

If I read that correctly, my boss is actually obligated to include me as a "co-inventor" in any patent application, which is good to know even if it's not relevant in this particular case. The more I look, the more convinced I am that 'Subjunctive' and 'Skunky' are the same thing, just 34 years apart. What a lot of work to find out bupkus.

On the other hand, if lightning strikes again, I at least know what I'd have to do, sorta.

'Warneckei' itself (sometimes 'Warneckii') is older than the dirt it's planted in, by this point. I haven't actually been able to find out anything about its origins, is how old it is. Consequently, any patents on it have long since expired (especially since the term used to be shorter: patents were originally good only for 17 years; this was extended to 20 in 1994). Which is why the push to "invent" new varieties like 'Ulises' and 'Jumbo,' which are for all practical purposes the same thing as 'Warneckei' but are just different enough that they can be exclusively held varieties for the 20-year period, after which, the hope is, there will be new varieties to have exclusive rights to, and the wheel keeps on turning.

Unknown cultivar. This is essentially to 'Warneckei' what 'Janet Craig Compacta' is to 'Janet Craig,' so I was calling it "Warneckei Compacta" in my head, but I think it's actually probably 'Jade Jewel.'
The boss and I had an interesting conversation about this a while back. She was griping about how after a certain period of time, it gets to be impossible to find certain older varieties, how nobody will be selling them anymore even if the customers still remember them and want them, because of this constant rotation in of new and improved varieties. I said something like, "And I bet most of the time the new varieties aren't even any better, right?" And she thought for a second and said, no, usually they were better in some respect or another, pest resistance or size or flowering time or something, but that that wasn't really the point, that A) the customers often still wanted the older varieties anyway, even if they sucked compared to the new ones, and B) having better varieties coming along, while it was good in a sense, also meant that you as a retailer get locked into dealing with the one single supplier who's licensed to sell that particular patented variety, and they can promote the hell out of the variety and get all the customers clamoring for it and then charge you high prices to sell it to you. Which you then have to pass on to the customers, and then the people selling the variety in question can turn around and sell the same thing to a big box for half the price because the big box is buying so much more of it. It's not that the new stuff isn't better, it's that smaller retailers like our store have less and less leverage over time: we're increasingly locked in to dealing with people who are increasingly putting us at a disadvantage.

Personally, I think (especially with gas prices being what they are) we should be looking into propagating more of our own product. We could use public domain varieties, grow stuff from cuttings (at least with some stuff), and not have to go through all this. Could get off the treadmill, so to speak. But this, understandably, makes the boss very nervous. Suppose people want the new stuff. Suppose the suppliers punish us for stepping off the treadmill by charging us higher prices for the stuff we still have to order. You see how it gets complicated. But the only other option, really, is to try to make the treadmill run faster, by developing our own patented varieties, and we're not really in a position to do that either, however much I push the boss to put in a tissue culture lab.

Don't get me wrong: I love some of the new plants that are being produced now. I'm all about the new varieties. But I also have vague intentions of maybe someday becoming a wholesaler myself, and if the legal landscape remains the same, I'm probably priced out of the business before I even start. So it's a weird position to be in.

For the moment, as far as I know, there is exactly one specimen of 'Skunky' in the world, and my employer has it. It's been suggested that we should talk to one of our regular suppliers about his connections to plant-propagation services. Maybe if it's not outrageously expensive, we could tissue culture a gazillion 'Skunkys' and sell them on EBay or something. But it would be risky, and neither the boss nor I are especially into risk-taking. So we'll see. The saga continues.

This whole exciting six-month deal does give me a new respect for the other Dracaena deremensis varieties I see. 'Warneckei' is the parent cultivar for a lot of the popular Dracaena varieties, including 'Janet Craig,'⁴ 'Limelight,' 'Lemon-Lime'/'Goldstar,'⁵ and the relatively new 'Art.'⁶ D. fragrans has more cultivars total, but D. deremensis has more of the ones I know and like. For whatever that might be worth. This same sort of thing (sport, discovery, propagation, patenting, marketing) has happened a number of times before, and will no doubt happen a number of times again. And the wheel continues to turn.

UPDATE (23 Aug 2008): I have some pictures at this post of 'Jumbo' and 'Ulises,' which are just barely distinguishable from one another.

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Photo credits: 'Bausei:' unknown. Black and white 'Skunky:' from the patent application for 'Skunky.' Link in text. All others: author's own.

¹ 'Warneckei' has an interesting response to excessive heat: the green parts of the leaf become yellowish, leaving only a netting of green veins, and then the leaves begin to "notch," which means that the new growth develops small cuts at the base of the leaves, like they've been sliced with knives or something. I have yet to see an explanation for why notching happens – it may be that we don't know – but it's fairly diagnostic of overheated 'Warneckei' plants. Below is my rescue plant, a few months after I brought it home – the netting of darker green veins is still clearly visible. I don't have a picture of notching.

It's also fairly normal for plants to develop round dead spots on leaves that are exposed to too much sun and heat: this is a problem we had last year in the greenhouse, and it's starting to happen again already. The topmost leaves of a 'Janet Craig' that we cut back during the winter, which started to regrow, now have a bunch of little necrotic patches on them. I'm not sure what, if anything, we're going to be able to do about that: the greenhouses are only so big, and everything tends to get hot in the summer.
² Spookily, the Zip Codes for Manitowoc, WI and Iowa City, IA are very similar: Iowa City's is 52240 (at least some of it), and Manitowoc's is 54220. Perhaps certain kinds of Dracaena mutations are only allowed in towns with zip codes beginning with 5, ending with 0, and having a 4 and a double-2 in the middle.
³ Although, in the 2001 case J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., the U.S. Supreme Court decided that no, sexually-reproduced plants (previously covered under the PVPA) can be given "utility patents" too, like the kind we're talking about for 'Skunky.' Exactly how that works, and why anybody gave a shit, is way beyond my depth, but I bet you $10 that the whole point of ruling that way was so that people who already have a lot of money can take even more money at the expense of people with less money. 'Cause that's how America works at the moment. Not that I'm bitter.
⁴ Which actually surprises me. I don't know why, but I just kind of assumed, I guess, that the solid-green plant would have to happen first, and the variegated ones would come later. Getting a solid-green plant from a white- and gray-striped plant seems backwards somehow. It was still a mutation, though: the species is not as dark of a plant as 'Janet Craig.' Nevertheless, I ran into text asserting that 'Warneckei' came first in a couple different places, so I expect it's probably true.
I believe, but could not confirm, that 'Janet Craig Compacta,' sometimes known as the "pineapple Dracaena" is a direct descendant of 'Janet Craig,' which if true would make it 'Warneckei's grandchild. In a manner of speaking.
⁵ Except with 'Lemon-Lime' and 'Goldstar,' (which might be another case of varieties so subtly different as to be basically the same thing), unlike 'Janet Craig,' you can see the resemblance to 'Warneckei.' The bright yellow margins are new, but the center of the leaves contains the same finely-striped grays and greens and whites as the center of 'Warneckei' leaves. 'Lemon-Lime,' by the way, is going to be getting its own profile someday, too, because I'm incredibly fond of it.
⁶ More legal hair-splitting: I say that 'Art' is a descendant of 'Warneckei' because freepatentsonline.com had a variety called 'DR9901ART' that was supposed to be a sport of 'Lemon-Lime,' and which sounded more or less like the plant I've come to know as 'Art.' The picture does match up, in the patent application, but it's a very strange thought, because they don't look very related. I guess in some ways it makes sense: if 'Warneckei' could produce a sport that was a solid dark green, then a 'Warneckei' with chartreuse edges should be able to produce a solid dark green sport with chartreuse edges. It's just that you don't see the family resemblance up-front.
'Art' would also, incidentally, be one of 'Warneckei's grandkids: if 'Warneckei' is a lawyer, he's clearly an older, grandfatherly type who smells like books and single-malt scotch, dresses up as Santa Claus at Christmas time, and fixes lots of elections in smoke-filled rooms. Also I expect he's a Freemason.