Strawberry Patent Rights, Forever

by Lane Powell PC - Food, Beverage and Hospitality Law Blog

 Ripe strawberries define lusciousness.  Fragile, with fleeting taste, these heart-shaped berries inspired Shakespeare’s pen: “The strawberry grows underneath the nettle; and wholesome berries thrive and ripen best; neighbour’d by fruit of baser quality.”[1]  Regarded as an aphrodisiac in provincial France, newlyweds were served strawberry soup.

Bringing the perfect strawberry to market is the driving force behind an entire industry of growers and distributors.  Consumer surveys show that “sweetness” and “complex flavor” are the favorable attributes of an “ideal” strawberry experience.[2]  In the words of research scientists, “a ripe strawberry is metabolically poised to elicit the greatest sensory and hedonic responses from consumers.”[3]

With a product so flavorful and evocative, it is small wonder that strawberries continue to be an active source of patentable innovations.  This article examines some recent U.S. patents issued for strawberry varieties and their cultivation methods.

The Columbian Exchange

Strawberries originated in the Americas.  Native Americans crushed strawberries into cornmeal and created a precursor to strawberry shortcakes.  Through the Columbian Exchange, strawberries arrived on European shores.  They soon became an emblematic feature of the aristocratic dining table.  Jean de Quintinye, a gardener for Louis XIV, developed the first named variety of a musk strawberry known as the Capron in 1672. That strawberry variety is still available today.

New Strawberry Variety Plant Patents

One of the leading owners of U.S. strawberry variety plant patents is Driscoll Strawberry Associates, Inc., located in Watsonville, California.  Indeed, Driscoll’s founders patented the “Sweet Briar” strawberry—later known as the “Banner” strawberry—in the early 20th century.  Driscoll’s continues to patent new and distinct varieties of strawberries.  USPTO records show that the company has patented at least 86 different varieties of strawberry plants over time. The company’s website states that it studies “thousands of potential varieties” and that it takes 5-7 years to develop each new patented variety.

The most recent Driscoll’s strawberry plant patent issued on December 17, 2013, for a “Strawberry Plant Named ‘DrisStrawThirty’” (U.S. Plant Patent No. 24,096).  This new strawberry variety was discovered in Avitorejo, Spain in February 2007 and underwent testing for five years.  It is distinguishable from other strawberry varieties due to its high yield, dark red fruit color and large fruit with medium sweetness.

A second strawberry plant patent application filed by Driscoll’s on the same day as the ’096 patent did not fare as well.  The USPTO rejected the company’s patent application for a “Strawberry Plant Named ‘DrisStrawTwentyNine” because its specification presented “less than a full, clear, and complete botanical description of the plant and the characteristics which define same per se and which distinguish the plant from related known cultivars and antecedents.”  This strawberry plant had also been discovered in February 2007 in Avitorejo, Spain.  Perhaps because of the USPTO’s issuance of the “DrisStrawThirty” patent, the company abandoned the companion strawberry patent application for “DrisStrawTwentyNine.”

Closer to home, the Washington State University Research Foundation obtained a patent for a “Strawberry Plant Named Puget Crimson” (U.S. Plant Patent No. 22,781) in June 2012.  This strawberry is the result of a hand pollinated cross between “Schwartze” and “Valley Red” strawberry varieties.  The Puget Crimson “is distinguished by fruit that is large, firm and easily capped, with excellent flavor.”  The fruit ripens in late June.

Interestingly enough, a group of Seattle chefs taste-tested the strawberry varieties being developed by the Washington State University Research Foundation.  The one that came out on top—the Puget Crimson—was then known only as “No. 2833.”  Be sure to sample the Puget Crimson strawberry when it appears in your local grocery store or farmers’ market this summer![4]

Strawberry Plasticulture

While strawberries are visually and aromatically enticing, the strawberry fields on which they are grown are not.  As one author put it, strawberries “begin and end in plastic.”[5]  Commercial production of strawberries involves heavy use of plastic film mulches and drip irrigation/fertilization systems. This commercial production method is known in the industry as strawberry plasticulture.

Strawberries are also notoriously hard to harvest.  To migrant workers, they are known as la fruta del diablo, “the fruit of the devil.”  “Picking strawberries is some of the lowest paid, most difficult, and therefore least desirable farm work in California.”[6]  To the extent processing advancements can reduce the backbreaking toil of harvesting strawberries, patents are a natural means to protect such grower innovations.

Thus, the difficulties experienced in growing and harvesting strawberries can and do provide a fervent ground for patenting activities.  A recent example related to strawberry plasticulture is a “Process for Enhancing Plant Growth,” U.S. Patent No. 8,505,237, issued on August 13, 2013.  The ’237 patented invention involves incorporating one or more yellow pigments or dyes into plastic mulch film or greenhouse coverings so that specific ratios of light are transmitted, emitted or reflected.  Research underlying this invention shows that plants “see” colors very differently than humans do.  Spectral modifications of light can profoundly impact plant growth.  This patent is part of a large wave of patents directed to plasticulture technology.  See, e.g., “Stabilized Polyolefins Having Increased Agrochemical and UV Resistance and Methods of Use” (patent application published on October 10, 2013).

No End to Potential Strawberry Patents

Through cross-breeding of strawberry varieties and in light of heavy commercial reliance on plasticulture systems and methods for strawberry cultivation, the possibilities for strawberry-related patenting activities appear to be endless.  Truly, strawberry patents, forever.[7]

[1] William ShakespeareHenry V (c. 1599), Act I, scene 1, line 60.

[2] M. Schwieteman, et al., “Strawberry Flavor: Diverse Chemical Compositions, a Seasonal Influence, and Effects on Sensory Perception,” PLoS ONE 9(2): e88446.  DOI: 10.1371/journal.pone.0088446 (published February 11, 2014).

[5] E. Schlosser, “In the Strawberry Fields,” from the Atlantic Monthly online (accessed on 3/4/14).  The article focuses on the hardships encountered by migrant workers harvesting strawberries in California.

[6] Id.

[7] Most readers will immediately recognize the weak pun related to the famous Beatles psychedelic pop/rock song, “Strawberry Fields Forever.”  The Beatles’ song hit the airwaves in February 1967 as a double A-side single with “Penny Lane.”  “Strawberry Fields” refers to the name of a Salvation Army children’s home near John Lennon’s boyhood home in Liverpool, England.  John’s mother forbade him from playing with his friends in the wooded lot behind the Salvation Army’s children’s home.  They would play there anyway.  Lennon would tell his mum that they couldn’t hang you for being there, hence, there was “nothing to get hung about.”  See


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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