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  • Print publication year: 2019
  • Online publication date: June 2019

22 - Climbing Rose

from Modern Times
    • By Brad Sherman, Brad Sherman is Professor of Law at The University of Queensland. His previous academic positions include posts at the London School of Economics, and the University of Cambridge. His research expertise encompasses many aspects of intellectual property law, with a particular emphasis on its historical, doctrinal and conceptual development.
  • Edited by Claudy Op den Kamp, Bournemouth University, Dan Hunter
  • Publisher: Cambridge University Press
  • DOI:
  • pp 184-191


IN THE MID-1920S, Henry F. Bosenberg, a landscape gardener from New Brunswick, NJ, purchased a number of roses for use in his landscape business. These included several “Dr. Van Fleet” roses, the climbing rose which had been bred by Dr. Walter Van Fleet at the US Department of Agriculture Plant Introduction Station, and introduced in 1926. The Dr. Van Fleet rose, which had been developed by crossing a tea rose with Rosa wichuraiana, was one of Van Fleet's “backyard roses” that were marketed as roses with beautiful flowers, luxuriant foliage, colorful hips, and that were resistant to disease and able to thrive in America's harsh climates. While Dr. Van Fleet roses typically only bloomed once a year for around two weeks, Bosenberg noticed that one of the Dr. Van Fleet roses that he had bought continued to bloom after the other Dr. Van Fleets had finished flowering. After watching the aberrant plant for two seasons, Bosenberg used the ever-blooming rose to propagate a number of new plants. Bosenberg noted that because the propagated plants bloomed the very first year and continued to bloom, and because plants that were budded from those young plants also continued to bloom, there would be little danger of it reverting to the original Dr. Van Fleet. As a result, a new variety of rose—the Rosa “New Dawn”—was born.

Unlike the ordinary Dr. Van Fleet rose, which—in New Jersey, at least—usually bloomed for around two weeks in early June, with the occasional rare flower in mid-summer or fall, the New Dawn rose flowered continuously from early June until growth was stopped by frost, usually in late October. Recognizing the potential value of this repeat-flowering rose, Bosenberg filed for plant patent protection on 6 August 1930 from the US Patent and Trademark Office underthe 1930 Plant Patent Act. After some initial problems—primarily caused by the US Department of Agriculture's demand for proof of the New Dawn's “everblooming characteristics”—Plant Patent Number 1 was granted for the New Dawn rose on 18 August 1931.The Plant Patent Act, which had been signed by President Hoover on 23 May 1930, had emerged in response to complaints from the nursery industry that the future of the plant breeding industry was beingjeopardized by the “pirating” of new plant varieties.