Understanding Plant Patents
What is a Plant Patent
A patent is a legal protection for the breeder, preventing others from reproducing the protected plant variety by cuttings, tissue culture or any other method of asexual propagation without the written authorization or licensing of the patent holder. Possession of improperly propagated plants of patented varieties constitutes infringement, even if an illegal propagation was inadvertent.
How Plant Patents Protect Breeders’ Investments
Patents help provide breeders with a return on their investment. Patenting a plant is just like patenting any other invention or product. Once a plant variety is patented (or has a patent pending) a royalty is paid to the owning nursery on the basis of each plant sold.
Plant patents are important to plant breeders because it takes a lot of time to breed and test their plants. Plant patents provide an incentive to plant breeders to invest the time and money to innovate and develop new plant varieties.
Additionally, patenting may be an expensive, risky and time-consuming process. The cost to patent just one variety may be thousands of dollars.
Why Plants Receive A Patent Number
Once a plant is patented, it receives a patent number. For example, you will find that PP17169 is the patent number for Hydrangea macrophylla Endless Summer® Blushing Bride®. The holder of this particular patent, and/or its representatives, charges a royalty on the propagation or sale of the patented plant. This fee goes to the plant breeder and is often used for marketing to encourage more sales of the patented plant. This process encourages a good breeder to continue breeding great plants!
How Plant Patents Are Obtained
All patents are obtained by applying to the United States Patent and Trademark Office (USPTO). There are three types of patents:
- Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
- Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
- Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
Anyone seeking a plant patent is advised to contact the USPTO just before filing an application to make sure there are no new requirements and to make sure the filing fees, which are subject to change, are sufficient. Being aware of the most up-to-date regulations and fees can be critical to breeders whose competitors are working on breeding the same type of plant.
Plant breeders sometimes work with a registered patent attorney/agent to obtain a patent and protect the patent once it is issued. The USPTO maintains a directory of registered patent attorneys and agents at http://www.uspto.gov/web/offices/dcom/olia/oed/roster/index.html.
The USPTO provides detailed instructions about filing for a plant patent, but there are two essential steps that must be satisfied before an application is filed:
- The discovery step, which involves the identification of a novel plant, either through finding a unique plant in a cultivated area or through developing a new plant using a planned breeding program.
- Asexual reproduction of the plant, which tests the stability of the claimed plant to assure that the plant’s unique characteristics are not due to disease, infection, or exposure to agents which cause a change in the plant’s appearance which is transitory and not due to a change in the genotype of the plant.
Filing of an application before the second step of invention has been completed will result in rejection of the claim as being premature and nonstatutory.
Once a plant patent is granted to an inventor (or the inventor’s heirs or assigns), protection of the patent lasts for 20 years from the date of filing the application. This 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, specifically:
- 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.