By Carin Sears, Partner

On the first Saturday in May, the winner of the 152nd running of the Kentucky Derby will be draped in one of the most recognizable trophies in American sports: the iconic garland of 426 red roses. The tradition dates back to 1896, but it was sports columnist (and later Churchill Downs president) Bill Corum who, in 1949, gave the race its lasting nickname—the “Run for the Roses.”

What most spectators never realize is that the roses themselves are a carefully protected piece of intellectual property. The variety used in the garland is known as Freedom®, a deep-red, long-stemmed cut rose developed by German breeder Rosen Tantau and covered by U.S. Plant Patent No. PP16,697. Every rose in the winner’s blanket—and the 80 matching long-stems in the jockey’s bouquet—is the product of a breeding program whose output is protected by patent law.

For the breeders, growers, and licensees who bring a new plant to market, intellectual property is not a footnote. It is what allows decades of investment in cross-pollination, selection, and trial plantings to yield a commercial return. With the Derby just around the corner, it is a fitting moment to look at the tools available to plant breeders in the United States—and how they compare to protections abroad.

426 Roses, One Patent: The Flower Behind the Garland

The Freedom® rose (denomination Tan97544) is one of the most widely grown red cut roses in the world. It was introduced commercially in the early 2000s, and Kroger—which has crafted the Derby garland since 1987—has made it the signature flower of the race.

The garland measures 2.5 yards long, 14 inches wide, and weighs about 40 pounds. It holds 426 roses in the blanket itself, with 12 additional roses on each side frond, and a central “crown” containing one rose for every horse in the starting gate. With 20 horses set to run this year, that is 20 roses crowning the champion. The jockey’s bouquet of 80 matching long-stems, tied with roughly 10 yards of ribbon, completes the trophy.

None of that tradition would be commercially sustainable without the legal infrastructure that protects the variety itself. Without exclusive rights, a breeder who invests years in developing a distinctive cultivar could see it propagated and sold by anyone the moment it reached the market.

The Breeder’s Toolbox: Five Ways to Protect a Plant in the U.S.

U.S. law offers breeders five principal forms of intellectual property protection, each with a different scope, cost, and strategic use. In practice, sophisticated breeding programs layer several of them together.

Plant Patents. A plant patent, issued by the U.S. Patent and Trademark Office under 35 U.S.C. §§ 161–164, covers a new and distinct variety of plant that has been asexually reproduced—through cuttings, grafting, division, or tissue culture—rather than grown from seed. It does not cover tuber-propagated plants (such as potatoes) or plants found in an uncultivated state. The Freedom® rose is protected by exactly this kind of patent. Plant patents last 20 years from the filing date and give the holder the right to exclude others from asexually reproducing the variety, or from using, selling, or importing the resulting plant. The protection is narrow, however: it extends only to the specific variety disclosed, in its “ordinary meaning” as a living plant organism with a particular genotype.

Utility Patents. The Supreme Court’s 2001 decision in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., affirmed utility patent protection for plants. Utility patents are broader than plant patents: they can cover seeds, tubers, plants, plant parts, traits, breeding and/or cultivation methos. They can reach both sexually and asexually reproduced plants. The trade-off is cost and rigor. Utility patents require a written description that enables a person skilled in the art to make and use the invention, and biological material that cannot be described in words alone must be deposited with a recognized depository such as the ATCC. Like plant patents, utility patents last 20 years from filing.

Plant Variety Protection Certificates. The Plant Variety Protection Act of 1970, administered by the USDA’s Plant Variety Protection Office, is the U.S. implementation of the international UPOV system. The USDA Plant Variety Protection Office database lists the status of protected varieties. A PVP certificate covers new, distinct, uniform, and stable varieties of sexually reproduced or tuber-propagated plants—and, since 1994 amendments, asexually reproduced plants as well. Protection lasts 20 years for most crops and 25 years for trees and vines. PVP certificates include important statutory exceptions: a farmer-saved-seed exemption for replanting on the farmer’s own holdings, and a research exemption that allows use of the protected variety in breeding new varieties. Protection also extends to “essentially derived” varieties, which prevents minor cosmetic changes from defeating the original breeder’s rights.

Trademarks. Trademarks do not protect the plant itself. They protect the commercial name or brand under which a variety is sold. “Freedom®” is a trademark; the patent covers the underlying cultivar. Because trademarks are tied to use in commerce and can be renewed indefinitely, they often outlive the patent that originally protected a variety. A breeder whose plant patent has expired can still wield a strong trademark to control how the cultivar is marketed, as long as the mark is not allowed to become generic.

Trade Secrets. Parent lines used to produce hybrid seed, tissue culture protocols, and proprietary breeding selections are often kept as trade secrets. Trade secret protection has no filing requirement and no expiration date—it lasts as long as the information remains secret and provides competitive value. The catch is that, unlike patents, trade secrets cannot be asserted against someone who independently develops or reverse-engineers the same material.

Crossing the Finish Line Abroad: International Protection

Because plants are routinely traded, shipped, and propagated across borders, most commercial breeders pursue protection in multiple jurisdictions. The backbone of international plant variety protection is the International Convention for the Protection of New Varieties of Plants (UPOV), which sets minimum standards that member countries implement through their own national systems. UPOV 1991, the current act, is in force in the United States, the European Union, Japan, Australia, and most other major agricultural economies.

In the European Union, the Community Plant Variety Rights (CPVR) system, administered by the Community Plant Variety Office, grants a single right covering all EU member states. Protection lasts 25 years, or 30 years for vines and trees. Other UPOV members—including the United Kingdom, Canada, Japan, South Korea, Australia, and New Zealand—offer comparable national plant breeders’ rights.

Utility patents on plants, by contrast, are not uniformly available internationally. The European Patent Convention specifically excludes “plant varieties” from patentability, though patents on broader plant-related inventions (such as specific genes or breeding methods) are still possible.

Trademarks are also available abroad and can be obtained through the Madrid System and/or directly in each desired jurisdiction.

Strategies therefore differ significantly from country to country, and breeders typically rely on a portfolio approach: plant breeders’ rights in jurisdictions that offer them, utility patents where permitted, and trademark registrations everywhere the variety is sold.

The Long Shot You Don’t See Coming

The Freedom® rose is a quiet example of how intellectual property underwrites things that most people think of as purely traditional. The roses in the Derby garland are not just red and beautiful; they are uniform, reliably colored, long-stemmed, and commercially available in the volumes needed to produce a 40-pound garland on demand each May. That reliability is the product of a breeding investment that the various intellectual property protections make possible.

For clients in agriculture, horticulture, or any plant-touching industry—from row-crop seed companies to specialty nurseries—the lesson is the same one the Derby teaches every year: the tradition you see at the finish line rests on a framework of rights that was carefully built long before the starting bell.

Carin Sears, J.D., Ph.D., is a partner at Lex Generalis whose focus is on clients in the agriculture and life science sectors, including plant variety protection, plant patent and trademark strategy, and related licensing and diligence matters. Lex Generalis, LLC is a boutique law firm built around the early-stage innovation ecosystem, serving startups, research institutions, and venture capital investors with integrated corporate and intellectual property counsel. Founded and led by a team that includes experienced investors, entrepreneurs, engineers, and scientists, the firm takes a business-first approach to legal work.