How To Apply for a Plant Patent

The federal government issues plant patents to people who have invented or discovered a new variety of plants. To qualify for a patent, the person submitting the patent application to the United States Patent and Trademark Office (USPTO) must prove that they can asexually reproduce the new plant. The only exemptions to this rule are plants with tuber propagation and plants that inventors find in an uncultivated state.

Below is a guide to help you apply for a plant patent. You must file your application correctly the first time, as you don’t want to waste time and money redoing it. Consult an intellectual property lawyer for help with your plant patent application.

Types of Patents

Three types of patents are available from the USPTO. These include:

• Utility patents
• Design patents
• Plant patents

The patent application process is similar regardless of the type of patent you seek. But, there are specific requirements for people seeking patent protection for a new plant.

Why Would You Need a Plant Patent?

People seek a patent to enjoy exclusive rights to a particular item, good, or service. Plant growers and breeders need patent protection to prevent others from stealing their ideas for new plants or newly discovered specimens.

Whether you run a small business or work for a large company importing plants from other countries, you’ll want an edge over the competition. One way to do this is to create or discover new and unique types of plants. This is especially true for entrepreneurs looking to break into a plant market.

Once a patent holder registers their patent, they’ll enjoy protection from infringement. If a rival greenery, nursery, or grower attempts to replicate your plant types, you can file an infringement claim against them in civil court.

You will enjoy some protection while waiting for the government to review your provisional application. But, you will not have complete patent protection until the USPTO issues your non-provisional plant patent.

Preparing the Application

You should familiarize yourself with the plant patent application before filling it out. Before you file any paperwork, you must ensure your plant is stable. There’s no point in seeking a patent for a plant you can’t reproduce or sustain.

There are two possibilities for developing a new plant invention:

• Discovery: This involves the identification of a novel plant. You can perform this in any cultivated area. It may also involve the identification or recognition of an off-type plant or desirable mutant plant. You may discover an outstanding individual plant within a planned breeding program.
• Sexual reproduction: During this step, you must test the stability of the new plant to ensure its unique characteristics are not due to disease, infection, or exposure to interfering agents. You don’t want to learn later that the plant’s uniqueness is transitory or an anomaly.

If you file your application before you complete both steps, the USPTO will deny it. You must show that you can asexually reproduce the new plant. If the parent plant dies without a new crop, there is no need for a patent.

Contents of the Application

The patent process can be long and arduous. When you request a patent, you should ensure that you submit all the necessary documents and forms.

Typically, a plant patent application must include:

• Oath or declaration. The person who invented, discovered, or asexually reproduced the plant must submit the patent application. For new plants, the oath or declaration must also state that the applicant found the plant in a cultivated area.
• The drawing. You must submit a drawing of the new plant with your application. Typically, applicants submit photographs of the plant, but you can also use other mediums, such as watercolor renderings. These faithfully present the plant’s appearance and are acceptable to the USPTO. Such drawings should be artistic and competent in their execution. The drawing must disclose all the plant’s distinctive characteristics capable of visual representation.

Final Preparation and Assembly

Before you file your application, you must confirm that you’ve observed clones of the plant during the testing process. You must also include a complete description of the plant’s botany. You can’t merely describe its components. You must observe and describe all parts of the plant in your paperwork.

The patent examiner will review your application. If parts are missing or the drawings and descriptions are insufficient, the examiner will deny the application, and the patent owner must resubmit a new application.

Once the patent examiner approves your patent, they will assign a patent number to the plant. Your patent rights will start on your application filing date, and your intellectual property protection will be retroactive.

How Do I Know if the USPTO Has Approved My Plant Patent?

Many growers wonder how long it takes for the USPTO to approve their plant patent application. Unfortunately, it can take up to two years to get a response from the USPTO.

Since your plant patent application only takes two to three weeks to complete, this can be highly frustrating. One option is to apply for a provisional application during the testing phase. But you’ll ultimately still have to request a non-provisional patent.

You can also use this time to review the catalogs of other plant patents to see if your plant is similar (or the same) to others. If you see that someone has submitted a plant patent application for the same plant before, you can withdraw your request. Conversely, if you can’t find a similar plant, there’s a good chance the examiner will approve your request for a patent.

Important Note on the Plant Patent Application Process

Many growers find that the details required in the patent application are excessive. But, the more detail you offer, the greater your plant variety protection. The USPTO patent examiner reviews each application on a case-­by-­case basis and will check if your new plant is like any previous art plants.

If your plant belongs in a high-traffic market, the patent examiner will require greater detail, substance, and specificity. Seek legal advice from a patent attorney. They’ll review your application and improve its chances of approval.

Your patent law attorney will also help protect your intellectual property rights for a plant or utility patent once the government approves your patent.

Learn more about plant patents and the application process from the USPTO at General Information About 35 U.S.C. 161 Plant Patents.