Through years of interacting with inventors, I’ve come to find that the only patent types most are familiar with are design and utility patents. This is why I’ve decided to shed more light on the lesser known variant – a patent for new plant varieties. In this article, I’ll walk you through plant patents, covering what you should know about them, how they work, and the requirements for getting one.
Plant Patents
Plant patents are rights granted to inventors or breeders who have invented or discovered a new and distinct plant variety. This includes cultivated sports, mutants, hybrids, transformed plants, algae, macro-fungi, and newly found seedlings. However, it does not include tuber-propagated plants or plants found in uncultivated states.
The Plant Patent Act (PPA) of 1930 (35 U.S.C. §§ 161-164) provides legal provisions for the patenting of new varieties of asexually reproduced plants, distinct from existing varieties and not found in nature. It specifically covers plants that are reproduced by means other than seeds, such as through cuttings, grafting, budding, or tissue culture.
With a plant patent, patent holders can protect their plant invention from being reproduced, used, sold, or imported by other people without authorization. This way, the breeders can recoup the investments made in research, development, and cultivation of the plant.
How do Plant Patents Work
To be granted a plant patent by the United States Patent and Trademark Office (USPTO), the inventor must submit a complete botanical description of the plant. This description should demonstrate how the plant is unique and should include drawings that show its distinct features.
When granted, the patent is valid for 20 years from the date of filing the patent application. However, the patent application will be published publicly 18 months from the initial patent filing date. This means that the details of the invention will be accessible to competitors and the general public.
Here are some of the benefits of getting a plant patent:
- Gives the patent holder exclusive control over the reproduction, distribution, and sale of the plant.
- Enables patent holders to gain back the investment they made in cultivating the plant.
- Increases the profitability of the plant invention.
Requirements for a Plant Patent
Securing a plant patent comes with a whole set of benefits for the inventor. However, for a plant to be patentable, it must meet certain requirements stipulated by the USPTO. They include:
Invention or Discovery in a Cultivated State
The plant must have either been invented or discovered in a cultivated state. This means that the plant must have been deliberately bred or cultivated by human intervention rather than occurring naturally in the wild.
Asexually Reproduced
Patents will only be granted to plants that are reproduced asexually, meaning they are grown through methods such as:
- Rooting cuttings
- Grafting and budding
- Apomictic seeds
- Bulbs
- Division
- Slips
- Layering
- Rhizomes
- Runners
- Corms
- Plant tissue culture
- Nucellar embryos
This requirement guarantees that the patent applicant can duplicate the plant.
Not Tuber-Propagated Plants
Tuber-propagated plants, which are grown from tubers such as potatoes, do not qualify for patent protection. To protect sexually reproduced and tuber-propagated plants, you can file with the Plant Variety Protection Office (PVPO).
Identification of the Inventor
Another requirement for patentability is that the inventor named in a plant patent application must be the individual who actually discovered/developed, isolated/identified, and asexually produced the plant.
Not Published Publicly
To qualify for a plant patent, the plant must not have been patented, sold, or made available to the public before the filing of the patent application. Once a plant variety has been publicly disclosed or patented, it loses its eligibility for patent protection.
It’s important to also note that there are a few exceptions to this.
Distinguishing Characteristic
The plant variety must have at least one or more unique characteristics distinguishing it from any other known plant. This distinguishing characteristic must not be one caused by growing conditions or fertility levels and may include features such as:
- Color
- Size
- Shape
- Growth habit
- Disease resistance or other observable traits.
Non-Obviousness
As of the date of filing the patent application, the invention of the plant must not have been obvious to someone in the relevant field. This makes sure that the plant invention involves a level of creativity beyond what would be considered predictable by experts in the field.
Who is the Inventor?
The inventor refers to the individual or individuals who discovered or invented the plant. Typically, the process of inventing a plant has various steps, so there may be more than one inventor. For instance, if the person who discovered a new plant also asexually produces it, then the person can be regarded as a sole inventor.
However, if one person invented the plant, and another person reproduced it asexually, then the second person can be considered a co-inventor. Sometimes, the plant invention may be the result of a team effort. In such cases, every team member can be named as a co-inventor.
It’s important to note that not everyone who contributes to the invention of a plant may qualify as a co-inventor. Providing administrative assistance, such as performing routine testing or carrying out basic tasks related to the invention process, does not confer inventorship.
How to File a Plant Patent Application
To get patent protection for and exclusive rights to your plant invention, you need to file a plant patent application. This process involves several key steps that include the following:
Determine Plant Patentability
Before filing a plant patent application, you must confirm that your plant invention meets the eligibility criteria for patent protection. Your plant must be new, distinct, and asexually reproduced. Additionally, it must not be a tuber-propagated plant or be discovered in an uncultivated state.
If your plant meets these requirements and the rest highlighted earlier on, then it is likely to be patentable.
Conduct a Patent Search
The next thing to do is conduct a thorough patent search to determine if your plant invention is new and not already protected by an existing patent. You can perform a patent search online by looking through the USPTO database for relevant prior art. You can also hire a professional patent search firm to assist you in the process.
If your search comes up with none, you can proceed to the next stage.
Prepare the Application
Once you’ve determined that your plant is eligible for patent protection and conducted a patent search, it’s time to prepare your patent application. The application typically includes the following elements in this order:
- Plant application transmittal form
- Fee transmittal form
- Application data sheet
- Specification
- Drawings
- The inventor’s oath or declaration
The specification must contain a full and complete botanical description of the plant, as well as the features that distinguish it from other plants. Here is the specific format to prepare the specification:
- Title of the invention
- Cross Reference to related applications
- The Latin name of the plant genus and species
- Variety denomination
- Background of the invention
- Summary of the Invention
- Brief description of the drawing
- Detailed botanical description of the plant
- Claim
- Abstract
Before applying, make sure you carry out a testing process to carefully observe every part of the plant through no less than one growth cycle. This allows you to provide a reasonably complete botanical description of the plant, as required. To get a complete botanical description, you must ascertain the following factors:
- Genus and species
- Habit of growth
- Cultivar name
- Precocity (if applicable)
- Botanical characteristics of plant structure, such as bark, flowers, and fruit
- Fertility
File the Application
Filing a plant patent application pretty much follows the same process as a utility patent application. It involves submitting the required documents and fees to the USPTO for patents in the United States. You could consider hiring a patent attorney to help out with this process.
After applying, patent examiners examine the plant variety to determine if it meets the criteria for patentability. If the application meets the requirements and no objections are raised during the examination, the patent office will grant a plant patent, providing you with exclusive rights to the plant for 20 years from the filing date.
Related Questions
What is the Difference Between a Plant Patent and a Utility Patent?
Plant patents specifically protect new and distinct plant varieties. They grant exclusive rights to reproduce, sell, or use the patented plants. Utility patents, on the other hand, protect the useful functions of an invention, such as machines, processes, or compositions of matter.
Do I Need a Plant Patent to Sell my New Plant?
No, you do not need a plant patent to sell or distribute a new plant variety. However, obtaining a patent for your plant invention provides strong legal protection for it. Patent protection reduces the risk that others may reproduce, use, or sell your invention without permission, which can significantly reduce your profit.
What Types of Plants can be Patented?
The types of plants that can be patented are new and distinct plant varieties that have been asexually reproduced. This includes a wide range of plants such as flowers, fruits, vegetables, trees, and shrubs. It also includes cultivated sports, mutants, hybrids, transformed plants, algae, macro-fungi, and newly found seedlings.
Conclusion
Plant patents provide inventors with exclusive rights to their plant inventions. This enables them to protect their intellectual property and recoup their investment. Before filing a plant patent application, make sure your plant meets the patentability requirements discussed above. Hiring an intellectual property lawyer to assist with the application process is also recommended.
