zucchini blogWith Halloween over and Thanksgiving looming, recipes for butternut squash soup abound while caved-in pumpkin faces rot away in back alleys.  For all their exotic shapes and colors, winter squashes remain tethered to autumnal demand.

Zucchinis are another story, escaping summertime seasonality.  Obscure even thirty years ago in American households, this squash and its variants are now year-round staple items in fresh produce aisles.

How a fruit masquerading as a vegetable broke free of distinct seasonality is a tale of international migration, generations of cultivation and varietal manipulation, and tasty recipes.

Squash patent applications offer a glimpse into the ongoing quest of agribusinesses to create intangible intellectual property assets—varietal patents and memorable trademarks—out of fresh fruit and vegetable produce.  This post analyzes an illustrative squash patent and the typical patenting issues encountered during the USPTO examination process.

Since food talk makes one hungry, we close with a zucchini recipe from perhaps the most inspiring cookbook of the 20th century, Simple French Food (1974) by Richard Olney.

 Zucchini’s Round Trip Journey to Italy and Back

Spanish conquistadors first encountered squash plants in Mesoamerica and brought their seeds back to the Old World during the Columbian Exchange and Age of Discovery.  Squash reveals its native American roots, derived “from the Massachusetts Indian word askutasquash, meaning ‘eaten raw or uncooked.’”[1]

After arriving in the Old World, generations of Italian farmers (near Milan) transformed the zucchini squash into something quite delectable through careful nurturing.  The name zucchini comes from a plural diminutive Italian word for squash, zucca; the French counterpart is courgette.  There is no established English name, hence our adoption of the Italian appellation.[2]

Zucchini squashes belong in the species category Cucurbita pepo—and are part of a larger “gourd” family (Cucurbitaceae) that includes cucumbers and watermelons.  Summer squash varieties are eaten before their rinds and seeds begin to harden.  In contrast, winter squash varieties—with their hard rinds and seeds—almost all belong in the species Cucurbita maxima or C. moschata.

Italian immigrants brought zucchini seeds and recipes with them to California in the 1920s.  In her mid-century classic cookbook, West Coast Cook Book (1952), Helen Evans Brown offers a recipe for Marin County Zucchini, noting that the county has many residents of Italian extraction and therefore “many superb cooks and superb dishes.”  It is simple: cut a zucchini in half, rub with cut garlic, sauté and brown, sprinkle with black pepper, drizzle some basil vinegar—and serve.[3]

A Plant Patenting Primer

Until the early 20th century, plants were considered products of nature and therefore deemed unpatentable in the United States.  The Plant Patent Act of 1930 (the “PPA”) changed that legal dynamic.  It sought to level the playing field between plant breeders and their mechanical and chemical inventor counterparts.

The PPA, however, only covered plants propagated asexually, i.e., through grafting techniques and the like.  Forty years later, perceived deficiencies in the PPA led to the enactment of the Plant Variety Protection Act (“PVPA”) of 1970.[4] The PVPA established patent-like rights for new varieties of seed-propagated plants.

Meanwhile, other patent law case developments paved the way for patenting new plant varieties under the U.S. utility patent provisions.  In Diamond v. Chakrabarty (1980), the Supreme Court held that patent law covered microorganisms, rejecting an argument that patent law could not cover living things.[5]

In Ex Parte Hibberd (1985), the Board of Patent Appeals and Interferences adopted Chakrabarty’s reasoning and reversed a rejection of patent claims covering maize (corn) plant technology.[6]

The patenting circle would be complete in 2001 with the Supreme Court’s J.E.M. Ag Supply holding that newly discovered plant varieties constitute patentable subject matter under general U.S. patent law, notwithstanding additional PPA or PVPA protections.[7]

An Illustrative Squash Patent

One company and inventor—Seminis Vegetable Seeds and William Clyde Johnson—are the most prolific applicants for squash patents in the United States.  Their most recent squash patent—entitled “Squash Hybrid SV0201YL and Parents Thereof”—was issued on October 25, 2016.  Seminis Vegetable Seeds is owned by Monsanto presently.

While the patent title generically refers to a “squash hybrid,” the species identified at issue is the Cucurbita pepo, and market varieties of zucchini-type squashes such as the Eskenderany, Otto, Revera and Marzouka are mentioned in the patent specification.  In fact, zucchini-like squash patent applications appear to rule the roost in all squash patent applications—likely due to the fact that zucchinis are in demand throughout the year now in the United States.

Like most patent applications involving plant life, the specification text is dense and virtually unreadable to a layperson.  The patentee’s goals, however, are readily understandable:

The goal of vegetable breeding is to combine various desirable traits in a single variety/hybrid.  Such desirable traits may include any trait deemed beneficial by a grower and/or consumer, including greater yield, resistance to insects or disease, tolerance to environmental stress, and nutritional value.[8]

To produce uniform squash varieties, the plant breeder must develop homozygous inbred plants, cross these inbred plants, and evaluate the crosses.  These breeding techniques combine the genetic backgrounds of two or more plants into breeding pools from which new lines and hybrids can be developed and assessed.[9]

Building in resistance to the viral diseases impacting squash plants is part of this plant development process.  Three viruses of concern to summer squash growers include the watermelon mosaic virus, the cucumber mosaic virus and the squash leaf curl virus.[10]

Patent examiners tend to focus on the following issues when they evaluate the patentability of a new squash variety:

  • Written Description, Enablement and Seed Deposits: Every patent must contain a written description sufficient to enable a person skilled in the art to make and use the invention.  Seed patents pose a peculiar issue in that regard.  No amount of explanation is going to enable a seed plant to grow.  In order to enable the use of a plant invention once it enters the public domain, a deposit of seeds is necessary.  A minimum deposit of 2500 seeds is ordinarily deemed sufficient.[11]
  • Anticipation, Obviousness and Double Patenting:  Only one patent is allowed per invention.  That does not mean there cannot be multiple embodiments of a single invention, however.  With plant hybrid permutations, it can be difficult to determine whether one squash variety is patentably distinct from another. In turn, this broad issue can lead to rejections based on anticipation, obviousness and double patenting considerations.  Only one skilled in the art is really able to make these kind of fine varietal distinctions and determinations.

If and when you obtain a squash plant patent, your resulting claim may read something like Claim 1 obtained by Seminis Vegetable Seeds in its recently issued ’219 patent: “A squash plant comprising at least a first set of the chromosomes of squash line LEB-EH-08-877 or squash line ZGN-130-1091, a sample of seed of said lines having been deposited under ATCC [American Type Culture Collection] Accession Number PTA-120694 and ATCC Accession Number PTA-13334, respectively.”

A Zucchini Recipe Tip from Richard Olney

A perfectly patented zucchini variety means nothing without consumer demand.  While Italian culture did much to elevate this squash into the staple produce item it is today, French cooks also transformed courgettes into culinary delicacies.

A highly influential 20th century gourmand, Richard Olney, documents these zucchini recipes in his remarkable cookbook, Simple French Food (1974).  Both Julia Child and Alice Waters would travel to Olney’s rustic hillside abode in Solliès-Toucas (Provence) to absorb French cooking techniques and recipes from this home cook extraordinaire born in Iowa.  Alice reportedly kept a jacket-less, food-stained copy of Simple French Food in the kitchen of her famous Berkeley, California restaurant, Chez Panisse.

Richard Olney’s recipe for a tourte aux courgettes (zucchini pie) contains a valuable tip.  Cubed zucchinis are salted and layered in a bowl for two hours—this is not Rachael Ray speed cooking—and then rinsed under running water and patted dry.  The extended osmotic process draws water out of the squash cell structure, rendering the zucchini pieces more firm to the bite, creating a delicious mouth feel.  Without this technique, the zucchini filling would be watery and gelatinous.

To finish the pie filling, the prepared zucchini and some finely chopped and gently stewed onions are added a paste of grated Parmesan cheese, garlic purée and a beaten egg.  The pie crust is purely Provençal; it substitutes olive oil for butter.  The resulting dish is sublimely tasty.  Bon appetit!


[1] “Squash Named from an Indian Word,” available online at http://aggie-horticulture.tamu.edu/archives/parsons/publications/vegetabletravelers/squash.html.

[2] See http://www.vegetablefacts.net/vegetable-history/zucchini-history/.

[3] Helen Brown’s West Coast Cook Book (1952), p. 399

[4] 7 U.S.C. § 2321, et seq.

[5] Diamond v. Chakrabarty, 477 U.S. 303 (1980).

[6] Ex Parte Hibberd, 227 U.S.P.Q. 443 (1985).

[7] J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124 (2001).

[8] U.S. Patent No. 9,474,219, col. 1, lines 20-25.

[9] Id., col. 1, lines 42-53.

[10] Id., col. 5, lines 12-18.

[11] “To facilitate the recognition of deposited biological material in patent applications throughout the world, the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure was established in 1977.”  See https://www.uspto.gov/web/offices/pac/mpep/s2402.html.


Photo of Paul D. Swanson Paul D. Swanson

Paul Swanson’s track record speaks for itself: the World Trademark Review 1000 lists Paul as a top individual in the trademark practice, describing him as a “very smart IP litigator who brings decades of courtroom experience to the table.” He is the only…

Paul Swanson’s track record speaks for itself: the World Trademark Review 1000 lists Paul as a top individual in the trademark practice, describing him as a “very smart IP litigator who brings decades of courtroom experience to the table.” He is the only Washington attorney to be awarded Lexology’s 2017 Client Choice Award in the field of trademark law.

Paul’s food/intellectual property law practice provides astute counsel regarding the intellectual property foundations of your food-related business ventures. His guidance is especially vital for agribusiness clients with intellectual property rights in formerly unbranded fresh fruit and vegetable produce. As the industry has shown, the reputation and goodwill of agribusinesses and foodservice companies is bound up in the quality of their products and services and the brand recognition generated through the diligent efforts of company employees and their predecessors.

Having worked on cases that now authoritatively control legal outcomes in matters of agribusiness commerce, Paul has a deep understanding of the complex legal issues faced by his clients. He regularly speaks on and writes about intellectual property issues and is principal contributor to the firm’s “Earth and Table” Law Reporter blog, devoted to analyzing the interplay between intellectual property and food commerce.

Paul is a Former Chair of the Washington State Bar Association’s Intellectual Property Section. He also chaired a WSBA/IP trademark committee whose work significantly revised Washington trademark law, and is a member of the International Association of Culinary Professionals (IACP).

Paul served as a Board Member of the Neighborhood Farmers Market Alliance, a community-based, nonprofit organization that operates seven farmer/food-only markets in Seattle neighborhoods. His article regarding the history and legal status of organic and natural food labels entitled “We Are What We Eat” appears on the website of Gastronomica: The Journal of Food and Culture.