Plant Patents: The Basics

Patents are generally granted to useful, novel, or non-obvious ideas. There are three types of patents:

• Plant patents are available for inventing or discovering a new and distinct plant. To get patent protection for a plant, you must be able to reproduce the plant asexually.
• Utility patents protect new and useful machines, compositions of matter, article of manufacture, processes, or improvements upon any of these.
• Design patents protect the unique appearance or design of a manufactured object. Please remember that if a person wants to protect an object's utility and ornamental design, they must file a utility patent and a design patent.

Regardless of the type of patent you seek, you must file a patent application with the United States Patent and Trademark Office (USPTO). The U.S. Patent and Trademark Office is the government body responsible for reviewing and determining if an invention or discovery is eligible for patent protection. This article will discuss the key things to know about plant patents.

What Is a Plant Patent?

First, plant patents are a form of intellectual property protection (IP protection) given to inventors who have created and asexually reproduced a distinct and new variety of plants. If you can reproduce your plant by means other than by seeds, such as cutting or grafting the plant, that's asexual reproduction. A plant patent requires asexual reproduction because it proves the applicant can duplicate the plant.

The plant can't be a tuber-propagated plant (i.e., an Irish potato) or a plant found in an uncultivated state. This patent lasts for 20 years. It gives an inventor the right to exclude other people from asexually reproducing the plant, as well as using or selling the plant.

Who Is the Inventor?

Since there are two steps to "inventing" a plant — inventing or discovering a new and distinct plant and asexual reproduction of that plant — there is a possibility that more than one person is the inventor. Generally speaking, an inventor has contributed to either aspect of inventing a plant. But if an inventor directs that a service performs asexual reproduction, the people performing that service are not considered co-inventors.

Plant Patent Application Process

The plant patent application process is crucial in getting IP protection for new and distinct plant varieties. Before applying for a plant patent, complete a search to ensure your plant variety is novel and distinct. It is also essential to document and describe your new plant in detail. Applications often include photographs and detailed illustrations to aid in the patent examiner's understanding of your invention.

The elements of a plant application include:

• Plant application transmittal form
• Fee transmittal form
• Application data sheet
• Specification drawings
• Inventor's oath or declaration

Once filed, a patent examiner reviews the application for compliance in the Office of Patent Application Processing. The filing date of your application is crucial because it establishes the priority of your patent application in case of disputes or competing applications with similar plant varieties.

Once the office grants your plant patent, you must maintain and enforce your rights. This includes legal action against others who try to use or sell the patented plant without your permission. This also includes keeping up with the maintenance fees of your patent. The amount of maintenance fees varies and is subject to change, but you can find the current patent fee schedule on the USPTO website.

Examples of Plant Patents

Types of plants that can receive patent protection are mutants, cultivated sports, hybrids, transformed plants, newly found seedlings, algae, or macrofungi. Some examples of patented plants include:

• Anemone Fantasy hupehensis 'Jasmine'
• Anemone Fantasy hupehensis 'Pocahontas'
• Astilbe 'Delft Lace'
• Chelone obliqua Tiny Tortuga
• Delosperma Jewel of Desert Garnet
• Dianthus American Pie Bumbleberry Pie
• Dianthus Early Bird Fizzy
• Dianthus Ever Bloom Strawberry Tart
• Dianthus Scent First Coral Reef
• Echinacea Dark Shadows Wicked

Checklist for Plant Patents

Is the plant invention:

• Novel?
• Distinctive?
• Asexually reproduced?
• Non-obvious?
• Invented or discovered in a cultivated state?
• Not excluded by statute?

If the answer to all these questions is "yes," you may be ready for a plant patent!

Need Legal Advice?

Filing for a patent involves following specific procedures and including particular information in an acceptable format. Follow the procedures to avoid an application denial or not getting complete protection for your invention or discovery. If you have questions about patent rights or would like help filing a patent application, contact an experienced patent attorney in your area.

Knowing your intellectual property rights as a small business owner or entrepreneur is vital. Whether you have questions about trade secrets, filing a trademark application, or copyright protection, getting help from an IP attorney is highly advised. Visit FindLaw's Intellectual Property section for more information on this topic and other types of intellectual property.