No, this post is not about the Thanksgiving antics of eccentric relatives.  Rather, it describes patented varieties of almonds, walnuts and pecans they may crack open with vintage nutcrackers—making a gleeful mess before dinner is served.

Tree nuts still resist the specific varietal trademark branding now associated with former fruit commodities, such as the Pink Lady® or forthcoming Cosmic Crisp™ apples.  Patent rights in undifferentiated fruit or vegetable produce usually focus on solving grower or industry facing concerns, instead of directly appealing to consumer taste preferences.

This post spotlights tree nut grower issues—as revealed by recently issued U.S. plant patents—and offers some tasty uses for this trio of very healthy, but seemingly under-utilized foodstuffs.[1]

Almond Trees Named ‘Kester’ and ‘Alm-21’

The most recent almond plant patent to emanate out of the UC Davis plant breeding powerhouse is for an almond variety named ‘Kester.’  The appellation is a tribute to the late Dr. Dale Kester, a highly regarded professor known for his work on the genetics and physiology of almonds.

Perusal of the ‘Kester’ plant patent specification discloses the “need for the development of new varieties capable of acting as a pollinizer for the California variety ‘Nonpariel’ (non-patented in the United States.)”  The ‘Nonpariel’ almond variety is California’s leading almond and accounts for almost 40% of total almond planted acreage.  Your reigning  flavor profile of an almond is probably a result of consuming ‘Nonpariel’ almonds.

The basic almond grower’s issue is this: the ‘Nonpariel’ almond variety—like most commercial almond varieties—is “self-sterile and requires pollen from cross-compatible varieties for successful seed sets.”  The much planted ‘Carmel’ almond variety in California formerly served this complementary pollinizing function, but has succumbed over time to a genetic disorder—non-infectious bud failure.  The ‘Kester’ almond fills in the breach as a pollinizer variety with a “good overlap with the later ‘Nonpariel’ variety bloom.”

Given the widespread publicity regarding a dramatic fall-off in bee colony populations, one can readily understand why another relatively recent almond plant patent is taking the California almond growers market by storm.  It is for an interspecific almond tree named ‘Alm-21’ invented by the Zaiger family (of Zaiger’s Inc. Genetics).  It is trademarked as the Independence® almond.

The ‘Alm-21’ patent specification underscores the Independence® almond’s increasing market significance for almond growers:

This new and distinct interspecific almond tree ([AlmondxPeachxAlmond)], is of large size, vigorous upright growth and a productive and regular bearer of soft shell nuts with kernels having excellent flavor similar to ‘Nonpariel’ Almond (non-patented).  *  *  *

The primary difference between the new variety and ‘Nonpariel’ . . . is the new variety is self fertile and ‘Nonpariel’ . . . is self sterile and needs a pollinator tree planted near to fertilize the flowers to produce almonds.  (Emphasis added.)

The plight of declining bee populations is causing almond growers to shift their plantings to the ‘Alm-21’/Independence® almond variety.  “In 2016, one quarter of all new almond acres were planted to the self-fertile Independence[®] variety” with many of these new almond trees being planted in the southern portions of the San Joaquin Valley.[2]

Want to diversify your family’s consumption of almonds?   Consider making your own almond milk from scratch.[3]  It is slowly, but deliciously supplanting cow’s milk in my diet.

A Walnut Tree Named ‘Durham’

Discovered and propagated in UC Davis’s walnut breeding program, a plant patent for a walnut tree named ‘Durham’ issued last month on October 17, 2017.  It is a new variety of what “we know as the English walnut, the common walnut of fall supermarket bins.”  In fact, “99% of the U.S. walnut crop comes from California’s Sacramento and San Joaquin Valleys.” [4]

The patent explains the walnut grower’s need for the ‘Durham’ cultivar:

In the walnut industry, it has long been recognized as desirable to provide walnut trees bearing large crops that are ripe for commercial harvesting and shipment early in the harvest season.  In particular, the California walnut industry is in need of earlier harvesting walnut varieties, as the most commonly plant variety ‘Chandler’ (U.S. Plant Patent No. 4,388) harvests late in the season (early to mid-October) which delays processing.  ‘Ivanhoe’ and ‘Solano’ [patented walnut varieties] were recently released as early harvesting varieties, but both leaf relatively early and thus have greater exposure to wet spring conditions that are more conducive to bacterial blight.

The ‘Durham” walnut characteristics that make both distinct and valuable include:

  • It forms jumbo-sized walnuts that possess light-colored kernels.
  • It bears nuts with shells that are smooth, oval, light colored, well-sealed, and attractive in appearance.
  • It bears fruit both terminally and laterally.
  • It yields a crop that can be harvested approximately 10 days before ‘Chandler.’
  • It is protrandrous, bearing male flowers before female flowers.

Walnuts will undoubtedly find their ways into many Thanksgiving pies and cakes—their historical use in the American palate.  A more intriguing way to employ walnuts is as a savory sauce for meats and vegetables.  To mix things up with your turkey day leftovers, check out Paula Wolfert’s fabulous recipe for a walnut, lemon and parsley sauce for turkey kibbe kebabs.[5]

A Pecan Tree Named ‘Tom’

Pecans are the only nut in this trio that is native to North America.  The name pecan is an Algonquian word that refers more broadly to any nut that requires a stone to crack it.

The most recent patent to issue for pecan trees is simply named ‘Tom.’  It represents the latest in a line of pecan tree cultivars discovered and propagated by Darrell Sparks, author of Pecan Cultivar: The Orchard’s Foundation (1992).

‘Tom’s’ desirable characterististics include: high prolificacy, consistent production, early nut maturity, a kernel suited to the confection trade, excellent kernel color, absence of kernel speckling, and excellent resistance to the scab fungus and high resistance but not immunity to black aphid and pecan leaf scorch mite.  ‘Tom’ is “somewhat less susceptible to late-spring freezes in Georgia than other pecan varieties.”

Over time, I’ve developed a specific food craving for caramelized pecans, which I scatter over all types of salads on an almost weekly basis.  For an easy five-minute recipe to caramelize pecans, check out this link,

Antiquated Nutcracker Patents

As a baby-boomer in the 1960s, it was a rite of passage to travel to Uncle Bud and Aunt Audrey’s home for Thanksgiving dinner.  When we arrived, a faint whiff of Uncle Bud’s cigar or pipe smoke would linger in the living room, along with bowls of unshelled almonds, walnuts and pecans, and a couple of nutcrackers.

For the next half an hour or so, our little hands would compete with each other in grappling with nutcrackers in an effort to extract chunks of nuts from their casings.  You can imagine the Pig-Pen mess we made.

The ritual of Thanksgiving nut-cracking is becoming as antiquated as rotary telephones in their hey-day.  Advancements in consumer product packaging mean that most nuts are purchased nowadays without shells in resealable containers.  While I eat more than my share of nuts, I haven’t tried to tease walnuts, almonds or pecans out of their shells in many decades.

Nutcracker patents—a frequent source of improvement patent filings in the early to mid 20th century—are likewise a disappearing breed, such as the nutcracker patent issued in April 1915 for an improved nutcracker “by which the nuts are retained in proper position during the cracking operation and the lateral flying of fragmentary portions of the cracked shells prevented during the cracking operation . . . .”

However, if you’re nostalgic for antique or vintage nutcrackers—and you’re traveling through “Bavarian” Leavenworth, Washington—you can always visit the Nutcracker Museum,

*  *  *  *

Lane Powell’s food, beverage and hospitality attorneys and staff hope you and your extended families enjoy plenty of nuts—in whatever form they may enter your household—during Thanksgiving!


[1] The abundant health benefits associated with eating almonds, walnuts and pecans on a regular basis are documented at length in a non-profit foundation website, World’s Healthiest Foods,

[2] See C. Parsons, “A closer look at the self-fertile Independence almond variety,” Western Farm Press (June 14, 2017), available online,

[3] For an easy to follow almond milk recipe, try

[4] The paragraph’s quotations are from R. Rupp, “Walnuts Through Time: Brain Food, Poison, Money, Muse,” National Geographic (September 29, 2015), available online,

[5] See

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.