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 plant in its ordinary meaning:

• 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.

Patentability Requirements

The plant patent must satisfy the general requirements of patentability. The subject matter of the application would be a plant which developed or discovered by applicant, and which has been found stable by asexual reproduction. 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 of a specific plant, 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.

Plant Patents: Determining Inventorship

Because there are two steps which constitute invention in plant applications, there may be more than one inventor. An inventor is any person who contributed to either step of invention. For example, if one person discovers a new and distinct plant and asexually reproduces the plant, such person would be a sole inventor. If one person discovered or selected a new and distinct plant, and a second person asexually reproduced the plant and ascertained that the clone(s) of the plant were identical to the original plant in every distinguishing characteristic, the second person would properly be considered a co-inventor. If either step is performed by a staff, every member of the staff who performed or contributed to the performance of either step could properly be considered a co-inventor. Thus, a plant patent may have a plurality of inventors. However, an inventor can direct that the step of asexual reproduction be performed by a custom propagation service or tissue culture enterprise and those performing the service would not be considered co-inventors.

For more information, see Plant Patents (USPTO).