Plant Patents – Overview

A plant patent is a grant by the government to an inventor 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. This grant gives the plant patent owner the right to exclude others from asexually reproducing the plant and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any parts thereof, into the United States.

The protection under a plant patent lasts for twenty years, beginning from the filing date of the application.

Plant Patent Criteria

  • Has been asexually reproduced by the applicant;
  • Has not have been introduced to the public nor sold or offered for sale or in public use more than one year before filing of the application; and

  • Has originated either as a result of an act by the applicant, e.g., cross-pollination, treatment, selection and/or breeding efforts, or as a seedling found by the applicant in a cultivated area, or as a spore or mutation found by the applicant.

Plant Patent Process

A plant patent application generally includes a specification and claim describing the new plant, a “drawing,” usually in the form of one or more color photographs, and the filing fee. Two copies of the a color photograph showing the distinguishing features(s) must be submitted when the color of the flower or plant is a distinguishing characteristic.The description of the plant variety should be as reasonably complete and detailed and expressed in botanical terms and form followed in standard botanical textbooks. Read More →

Plant Patent – Protection Offered

Once an individual successfully acquires a plant patent, he/she has the exclusive right to the plant they either invented or discovered. Interestingly, the individual’s right extends only to one plant, or genome and therefore, a modified or mutated version of the patented plant would not be a violation of the original holder’s patent. The plant patent effectively bars others from sexually reproducing, using, or selling the plant that is covered by the patent.

Plant Patent – When Do I Need One?

Plant Patents are ideal for individuals who have either invented or discovered (and subsequently asexually replicated) a new plant species. Of course, there are certain factors outlining the perimeters of a “New Species” and indeed “invented/discovered” which determine the viability of the patent. Still, anyone who is confident in his ability to meet these qualifications should certainly investigate the patent process. Acquiring the plant patent is a remarkable scientific and entrepreneurial achievement and an opportunity that should not be missed.

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Howard M. Cohn & Associates has extensive and varied experience in all aspects of Intellectual Property law, with a unique specialty in patent and trademark preparation and prosecution. Schedule an appointment or call us at 800-613-1067.

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