Patent Filing for Plants

Have you recently discovered and asexually reproduced a distinct variety of a new plant? Then I would say it is time for you to start your application for a plant patent.

A plant patent is granted to an inventor of newly invented strands of asexually reproducing plants. Tuber propagated plants or plants found in an uncultivated state cannot be patented.

The protection of a plant patent lasts for 20 years, and gives the inventor the EXCLUSIVE right to exclude others from asexually reproducing, selling or using the plant. This protection is limited to a plant that possesses the following qualities:

• A living plant that expresses a set of characteristics determined by its single genetic makeup or genotype, capable of being duplicated ONLY through asexual reproduction.
• 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.

Asexual reproduction is the propagation of a plant to form new individual cells without genetic seeds, ensuring an exact copy. Asexual reproduction ensures stability of the plant. Acceptable modes of asexual reproduction for a plant patent include, but are not limited to:

• Rooting cuttings
• Apomictic Seeds
• Division
• Layering
• Runners
• Tissue Culture
• Grafting and Budding
• Bulbs
• Slips
• Rhizomes
• Corms
• Nucellar Embryos

As outlined by the USPTO, in order for a plant to be patentable, there are several requirements that you must follow.

Plant Patent Help: Requirements for a Plant to be Patentable:

• That the plant was invented or discovered and, if discovered, that the discovery was made in a cultivated area.
• That the plant is not a plant which is excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part, as with potato or Jerusalem artichoke.
• That the person or persons filing the application are those who actually invented the claimed plant; i.e., discovered or developed and identified or isolated the plant, and asexually reproduced the plant.
• That the plant has not been sold or released in the United States of America more than one year prior to the date of the application.
• That the plant has not been enabled to the public, i.e., by description in a printed publication in this country more than one year before the application for patent with an offer to sale; or by release or sale of the plant more than one year prior to application for patent.
• That the plant be shown to differ from known, related plants by at least one distinguishing characteristic, which is more than a difference caused by growing conditions or fertility levels, etc.
• The invention would not have been obvious to one skilled in the art at the time of invention by applicant.

Did you meet the Plant Patent Help Requirements?

Did you meet the qualifications? There were many, so good for you! Let’s get going on the application for your plant patent!

Unfortunately, a plant patent requires some preparation before filling out the application. It is a two-step process to invent a plant; discovering the new plant in a cultivated area and then asexually reproducing it. If these criteria are not met, there is potential for the inventor to lose rights to the invention.

The following are the components of a plant patent:

1)    Plant Introduction:

• This should include the title of the plant being invented, and an introduction stating the name, citizenship and residence of the applicant.

2)    Cross-Referencing:

• Unless included in the application data sheet, provide a cross reference to related applications. These can be prior filed patents, copending nonprovisional patents, or international applications.
• Include in the FIRST SENTENCE the title, application number filing date, and the relationship of the applications.
• Copending applications to siblings or similar plants developed by the same breeding program.

3)    Statement regarding federally sponsored research or development.

4)    Latin name of the genus and species of the invented plant.

5)    Variety denomination.

6)    Background Information:

• This should begin with a statement about the botanical and market class that the invention is intended for and how the plant will be used.
• Indicate the botanical name of the plant by genus and species, and the market class.
• Include any information that you have that is related to your invention. Include the claimed parents or the known plants to which the invented plant it related.

7)    Brief Summary of the Invention:

• Explain the general idea of the invention in a summarized form. Include the major characteristics of the plant and the traits that set it apart from other plants.

8)    Description of the drawing:

• Describe each of the views and figures presented in the drawing.

9)    Detailed Description:

• This should be a complete botanical description of the claimed plant.
• DETAILED, I REPEAT, DETAILED information about your invention.
• Use exact terms. Be clear, concise, but thorough.

10) Claim:

• Definition of the subject matter which the applicant is wanting to patent.
• This is crucial, so spend time on it.
• Must be in formal terms and consistent with the title of the invention.

ONLY ONE CLAIM FOR A PLANT PATENT!

11) Abstract of the Disclosure:

• A condensed review of the most distinguishing characteristics of the plant. Briefly describe the most notable and important characteristics only.
• Narrative form. Limit yourself to a single paragraph (no longer than 150 words).
• Must be on a separate page.

12) Drawings:

• Normally a photograph but may be represented in other mediums.

13) Executed oath or declaration:

• This is a required statement of the applicant stating that he/she believes himself/ herself to be the original and first inventor of this invention.

Before you submit your application to the USPTO, check the website for any new specifications that may have been added while you were working on your application.

Wow! So there you have it! I do believe a plant patent is the most difficult of them all, but that is probably because I am not a botanist. Good luck out there!