Autumn spells and smells of apples.  Nowadays, newly patented apple varieties promise to dazzle our taste buds anew as fall harvests come in from our nation’s orchards.

It was not always so.  As a reminder, I recently bit into a nice-looking Red Delicious apple taken from a bowl of fresh fruit in our law firm reception area.  A mealy, sickly-sweet mash with leathery skin fragments stayed unchewed in my mouth—until I could race to the nearest bathroom, spit it out, and flush it down.

Inducing gag reactions is hardly a way to build markets for edible products.  Yet, a yawning taste chasm emerged in the mid 20th century as apple growers and grocery store chains foisted an increasingly indigestible Red Delicious apple on American consumers.  Put more colorfully, it was rammed down our throats, per Tom Burford, author of Apples of North America (2013).[1]

This post charts how a handful of plant patents issued in early 1990s revived the pure apple eating experience—rescuing the American palate from the tasteless diktats of Red Delicious purveyors.

The Rise and Fall of the Red Delicious Apple

Red delicious apples did not begin their varietal life in the pits.  In fact, it originated in the 1880s as “a round, blushed fruit of surpassing sweetness” named the Hawkeye; and won a taste competition organized by Stark Brothers Nurseries.[2]  “‘My, that’s delicious,’ the company’s president reportedly said after his first bite.”[3]

Growers, distributors and big-box grocery stores loved the Red Delicious apple because it looks so beautiful.  By the 1940s, it had become America’s most popular apple.  Its thick skin hid bruising and extended shelf life.  Breeding smaller trees and the advent of controlled atmospheric storage in the 1960s ensured its continued marketplace domination.

Apart from its keeping qualities, the Red Delicious was a variety Washington growers loved because they could raise it better than orchardists in other states.  The abundant sunshine and cool nights of the Yakima and Wenatchee valleys produced a fruit that was far redder and elongated and more distinctively lobed than Jesse Hiatt’s Hawkeye, which was rounder and yellow-green with only a modest amount of red blushing and striping.[4]

But as the Red Delicious “genes for beauty were favored over those for taste, the skins grew tough and bitter around mushy, sugar-soaked flesh.”  It became the “largest compost maker in the country” as customers bought them—only to throw them away in the garbage.[5]

The Lost “Tang” of Apples

Even in the 19th century, the taste differential between “wild” apples (crab apples) and their orchard counterparts was profound.  Henry David Thoreau relishes how these “wildings are acrid and puckery” when compared to grafted orchard apples:

Apples for grafting appear to have been selected commonly, not so much for their spirited flavor, as their mildness, their size, and bearing qualities—not so much for their beauty, as for their fairness and soundness.  Indeed, I have no faith in the selected lists of pomological gentlemen.  Their “Favorites” and “None-suches” and “Seek-no-farthers,” when I have fruited them, commonly turn out very tame and forgettable.  They are eaten with comparatively little zest, and have no real tang nor smack to them.[6]

Thoreau’s farmer neighbor says that wild apples “have kind of a bow-arrow tang.”  To see his first crab apple tree, Thoreau even travels to Minnesota by train; where he spots one about eight miles west of St. Anthony Falls.[7]

Apple growers in England could only scratch their heads at an America where their favorite apple—Cox’s Orange Pippin, considered the benchmark of apple flavor[8]—is deemed a “lost apple.”[9]

Honeycrisp to the Flavor Rescue

Ironically, the Red Delicious apple now occupies nearly the same sour gastronomic space as the crab apple “wildings” of Henry David Thoreau lore.  Both cause varying forms of food disgust when ingested—as our collective palates now favor a very sweet, crispy apple with a thin skin.  (Of course, blemishes, bruising and disfigured apples still turn off consumers in droves, as they shop with their eyes.)

In the late 1980s, apple researchers at the University of Minnesota and elsewhere began seeking patents on apples for their consumption qualities, rather than color.  The original Honeycrisp patent (PP7,197) issued in 1990 represents a breakthrough in the taste/texture of an apple.  The specification explains that:

This variety is most notable for its extremely crisp texture which is maintained for at least 5 months at 34° F.  The fruit of the Honeycrisp has been rated superior to fruit of McIntosh, Haralson, Honeygold, Regent, Delicious, and Keepsake by sensory evaluation panels for flavor and texture traits in winter storage tests (Chart A).  *  *  *

The fruit of this variety has an exceptionally crisp and juicy texture, with a sub-acid flavor and mild aroma.[10]

Similarly, a plant patent issued for the Cripps Pink apple in 1992 (PP7,880)—trademarked as the Pink Lady®—notes that the apple exhibits “the excellent fruit quality (high sugar, juicy flesh, thin skin and aromatic flavor) of both of its parent varieties [i.e., the Lady Williams and Golden Delicious].”  The patent claims a “new variety of apple tree . . . characterized by its ability to produce high quality dessert type fruits on spurs growing on upright limbs, firm, juicy, creamy-white flesh and excellent storage characteristics.”

As these newly patented varieties gained ascendency, Red Delicious stock went tumbling.  It used to represent three-quarters of the harvest in Washington state in the 1980s.  In the current 2017 growing season, it will amount to about 25% of the state’s total apple output.[11]

A clue to the decline of the Red Delicious is evident in the plant patents issued for its offshoot varieties.  For example, a patent for a “Spur-Type Red Delicious Apple Tree” (PP4,839) issued April 1982 concentrates solely on the color of the apple.

The present new variety starts to show fruit color approximately two weeks earlier than Early Red One or any other Red Delicious tree of which applicant is aware, and it also reaches full color in advance of all other Red Delicious trees by about the same lead period.

This patent probably had some real monetary value in a latter 20th century apple industry banking on uniform color to propel markets.  Nowhere does it even mention apple flavor.

While the Honeycrisp apple entered the public domain about 10 years ago, University of Minnesota apple breeders are keeping its superior eating qualities patentable by crossing it with another soon-to-expire patented variety called the ‘Minnewashta.’ The resulting apple is named the ‘Minneiska’ variety (PP18,812); and is branded as the SweeTango® apple.

Because of the long lead time necessary between securing patent rights and planting (virus-free) orchards capable of producing harvestable quantities, the SweeTango® variety is now making a market splash in 2017, even though the patent issued in May 2008.  Its co-inventor, David Bedford, opines that “it has all the crispness of Honeycrisp, plus more flavor: I think this one has all the potential of Honeycrisp.  It’s actually a child of Honeycrisp.”[12]

The tang embedded in the trademark suggests subtle wordplay associations—hearkening back to the “bow-arrow tang” of wild apples.

Key Takeaway

Domestication of apple trees from their wild counterparts invariably produces “dumbed-down” flavors.  Red Delicious apple growers took this pattern to an extreme.  An apple—once prized in the 19th century—lost its charter as it transmogrified over time due to the intense economic pressure of supply chain demands.

Apple plant patents issued in the 1990s fortunately shook the Washington state apple industry out of its single-minded Red Delicious hegemony—reviving the truly scrumptious taste of apples in our present time.

[1] See S. Yager, “The Awful Reign of the Red Delicious: How the worst apple took over the United States and continues to spread,” published in The Atlantic (September 10, 2014), available online, https://www.theatlantic.com/health/archive/2014/09/the-evil-reign-of-the-red-delicious/379892/.

[2] A. Higgins, “Why the Red Delicious No Longer Is: Decades of Makeovers Alter Apple to Its Core,” Washington Post (August 5, 2005), available online, http://www.washingtonpost.com/wp-dyn/content/article/2005/08/04/AR2005080402194.html.

[3] See n. 1, at 3/6.

[4] See n. 2, at 2/3.

[5] See n. 1, at 4/6.

[6] H.D. Thoreau, “Wild Apples: The History of the Apple-Tree,” published in The Atlantic (November 1862 issue; emphasis in original.), available online, https://www.theatlantic.com/magazine/archive/1862/11/wild-apples/411517/.

[7] Id., at 10/25.

[8] See https://www.orangepippin.com/apples/coxs-orange-pippin.

[9] See J. Fowles, Daniel Martin (1977), at 421 (“[I]t pleased Ben to have Dan demonstrate that he and his forefathers were wisest to have stayed put.  They’ve declared the Cox and Blenheim lost apples [in America], says Dan; and Ben shakes his head in disbelief.”).

[10] The Honeycrisp patent actually misstates the parentage of the variety as a cross between a Macoun x Honeygold.  A later research study shows that the true parentage is a cross between a ‘Keepsake’ apple and an unknown cultivar (likely destroyed) that was itself a cross between ‘Duchess of Oldenburg’ and “Golden Delicious’ apple varieties.  See N. Howard, et al., “Elucidation of the ‘Honeycrisp’ pedigree through haplotype analysis with a multi-family integrated SNP linkage map and a large apple (Malus x domestica) pedigree-connected SNP data set,” 4 Horticulture Research 17003 (2017), available online, https://www.ncbi.nlm.nih.gov/pubmed/28243452.

[11] “Red delicious on the decline” (September 7, 2017), available online, https://www.cosmiccrisp.com/news/2017/9/8/red-delicious-on-the-decline.

[12] D. Charles, “Want To Grow These Apples? You’ll Have To Join The Club,” NPR Salt Blog (November 10, 2014), available online, http://www.npr.org/sections/thesalt/2014/11/10/358530280/want-to-grow-these-apples-youll-have-to-join-the-club.

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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 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.