What is a “plant patent”?
A “plant patent” may be obtained by a person who has invented, or discovered and asexually reproduced a variety of plant that is new and distinct. A tuber propagated plant or a plant found in the wild is not eligible for patent protection. The term of a plant patent is 20 years, as measured from the date an application is filed. A plant patent gives its owner the legal right to exclude others from asexually reproducing, selling, or using the plant so reproduced.
What types of plants can be protected through a plant patent?
The plant must be a living organism which expresses a set of characteristics determined by its single, genetic makeup or genotype. The plant must be capable of being duplicated through asexual reproduction but cannot otherwise be “made” or “manufactured.” A sport, mutant, or transformed plant can be the subject of a plant patent. The sport or mutant may be spontaneous or induced. A hybrid may be natural, somatic in source or the result of a planned breeding program. Plant mutants which occur naturally can be patented, provided they were discovered in a cultivated area. Bacteria are not eligible for plant patents, but algae and macro fungi are.
What are some other requirements for plant patent protection?
An application for a plant patent must be filed less than one year before the plant was first sold or released in the United States or was described in a printed publication. The plant claimed must not have been obvious to a person skilled in the art at the time it was invented or discovered. In particular, the plant must differ from known plants by at least one distinguishing characteristic, other than a difference caused by growing conditions or the like.
What is the procedure for obtaining a plant patent?
With some exceptions, an application for a plant patent is subject to the same requirements as a utility patent application. The application must contain as full and complete a botanical description as reasonable possible of the plant and the characteristics which distinguish the plant over other plants. Typically, one or more drawings, such as color photographs where appropriate, are included to illustrate the plant’s distinguishing features. After filing, the application is checked by the Patent Office to ensure it complies with all formalties and then is assigned to an examiner. The examiner checks the formalities again and then examines the application on the merits to determine whether the plant being claimed is patentable.
What does a plant patent cost?
The typical total cost of obtaining a plant patent is generally on the order of $3000 to $5000. This would include not only Patent Office fees, but also the services of a qualified patent attorney or agent. Since filing an application which is incomplete or deficient may result in the application not being accepted or approved by the Patent Office or in the issuance of a plant patent that is weak or unenforceable, it is highly recommended that such an attorney or agent be utilized. A search of the prior art in advance of preparing the application may be adviseable to confirm that the plant is likely to be patentable.
Are other types of intellectual property protection available for plants?
Yes.
It is possible to file utility patent applications with the United States Patent and Trademark Office which claim plants (including bacteria), seeds, genes and so forth. Such applications are subject to the same rules and regulations as other utility patent applications and a patent granted on such an application affords the same rights as other utility patents.
Additionally, true breeding seed-reproduced and tuber-propagated plant varieties may be protected through the Plant Variety Protection Act (PVPA), which is administered by the Plant Variety Protection Office. Without the permission of the owner of the protected variety, a person is prohibited from possessing, selling or marketing the variety. It is also illegal to import or export the variety, sexually multiply it, propagate it by tuber, use the variety in producing (as distinguished from developing) a hybrid, or condition the variety for the purpose of propagation. A plant variety can be protected under a utility patent as well as through plant variety protection.
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