Plant Patent

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What is a plant patent?

A plant patent is granted by the Government to an inventor (or the inventor's heirs or assigns) who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. The grant, which lasts for 20 years from the date of filing the application, protects the inventor's right to exclude others from asexually reproducing, selling, or using the plant so reproduced. This protection is limited to:

A living plant organism which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction, but which can not otherwise be "made" or "manufactured."
Sports, mutants, hybrids, and transformed plants are comprehended; sports or mutants may be spontaneous or induced. Hybrids may be natural, from a planned breeding program, or somatic in source. While natural plant mutants might have naturally occurred, they must have been discovered in a cultivated area.
Algae and macro fungi are regarded as plants, but bacteria are not.

The information presented in this publication is tailored to apply to and is limited to patents on asexually reproduced plants. While the United States Patent and Trademark Office (USPTO) does accept utility applications having claims to plants, seed, genes, etc., such practice is beyond the scope of this publication. General information regarding utility practice can be obtained by calling PTO Information Services Division at 1-800-786-9199, or from a registered patent attorney. Intellectual property protection for true breeding seed reproduced plant varieties is offered through the Plant Variety Protection Office, Beltsville, Md., which should be contacted for information regarding intellectual property protection for such crops.

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To be patentable, it would also be required:

That the plant was invented or discovered and, if discovered, that the discovery was made in a cultivated area.
That the plant is not a plant which is excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part, as with potato or Jerusalem artichoke.
That the person or persons filing the application are those who actually invented the claimed plant; i.e., discovered or developed and identified or isolated the plant, and asexually reproduced the plant.
That the plant has not been sold or released in the United States of America more than one year prior to the date of the application.
That the plant has not been enabled to the public, i.e., by description in a printed publication in this country more than one year before the application for patent with an offer to sale; or by release or sale of the plant more than one year prior to application for patent.
That the plant be shown to differ from known, related plants by at least one distinguishing characteristic, which is more than a difference caused by growing conditions or fertility levels, etc.
The invention would not have been obvious to one skilled in the art at the time of invention by applicant.

Where doubt exists as to the patentability, a qualified legal authority should be consulted prior to applying to assure that the plant satisfies statutory requirements and is not exempted from plant patent protection.

U.S. Department of Commerce
Patent and Trademark Office
www.uspto.gov

Online information resources. Patents-i.net