Plant Patents

Plant Patents in the United States

Plant patents in the United States represent a form of intellectual property available for new and distinct varieties of plants that have been asexually reproduced. The legal foundation comes from 35 U.S.C. § 161, which states that patents may be awarded to anyone who “invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state.” 

Historically, less than 1% of the total number of patent applications filed with the USPTO are plant patent applications; the vast majority are utility patent applications. Nevertheless, plant patents can provide a cost-effective vehicle to help protect botanical innovations.

What Can Be Protected by a Plant Patent?

Eligibility Requirements:

  • New and Distinct: The plant must exhibit at least one characteristic that clearly differentiates it from existing varieties, such as novel flower colors, disease resistance, or growth habits.
  • Asexual Reproduction: The plant must be capable of propagation through methods other than seeds, including cuttings, grafting, layering, budding, or tissue culture.

Scope and Exclusions:

  • Coverage: Plant patents protect the entire plant variety and all asexual progeny throughout the United States.
  • Tuber-Propagated Plants: Specifically excluded because these plants (Irish potatoes and Jerusalem artichokes) are propagated by the same part of the plant that is sold as food.
  • Wild Plants: Plants found in uncultivated states are excluded; discovered plants must be found in a cultivated area.

Duration and Rights:

  • Term: 20 years from filing date with no maintenance fees required.
  • Exclusionary Rights: Patent holders can exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts.

Requirements for Obtaining a Plant Patent

Statutory Requirements

  1. Invention or Discovery with Cultivation: For discovered plants, applicants must prove the plant was found in cultivation, not in the wild.
  2. Completed Asexual Reproduction: The inventor’s oath or declaration must state that the inventor has asexually reproduced the plant before filing.
  3. Novelty and Non-Obviousness: The plant must not have been previously described, patented, or publicly sold, and must represent a non-obvious variation.

Application Components

  1. Detailed Botanical Description: Include specific details about distinguishing characteristics
  2. Color Specifications: When color is distinctive, applications should identify specific colors 
  3. Latin Name and Variety Denomination 
  4. Single Claim: Only one claim is permitted, typically: “A new and distinct variety of [species], substantially as illustrated and described herein”

Filing and Examination Process

Application Filing:
Applications are filed with the USPTO and must include all required elements before examination begins. Current application fees are somewhat less than for utility patents. 

Examination Process:

  • Specialized Review: USPTO examiners with botanical expertise conduct comprehensive prior art search and application review
  • Agricultural Research Service: Applications may be submitted to the Department of Agriculture for study and report 
  • Timeline: Typically 18-36 months from filing to final disposition

Plant Patents vs. Other Protection Forms

  • Plant Patents: Asexually reproduced plants, 20-year term, no maintenance fees, single claim
  • Utility Patents: Broader plant protection including genes and methods, maintenance fees required, multiple claims possible
  • Plant Variety Protection Act (PVPA): Administered by the USDA, covers sexually reproduced and tuber-propagated plants, 20-25 year terms

Learn more about Plant Patents from the USPTO (https://www.uspto.gov/patents/basics/apply/plant-patent) and about Plant Variety Protection from the USDA (see https://www.ams.usda.gov/services/plant-variety-protection).