Hartman Global IP Law: Plant Patents 101

By: Kole Rushmore Last Updated: July 22, 2021

If someone told you they invented a plant, would you believe them? It seems odd but it’s a thing, and it occurs more frequently than you might think! Luckily, Hartman Global IP Law is here to educate you on the ins and outs of the process.

What is a plant patent?

Created by the United States government in 1930, this type of patent protects the rights to the inventor (or the inventor’s heirs) who has invented or discovered the plant. The grant lasts 20 years from the date of filing the application. It protects the owner’s right to exclude others from asexually (the propagation of a plant without the use of fertilized seeds to assure an exact genetic copy of the plant being produced) producing, or selling the plant or any of its parts throughout the United States. However, according to the United States Patent and Trademark Office, the protection is limited to a plant in its ordinary meaning:

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 cannot otherwise be "made" or "manufactured."
Cultivated sports, mutants, hybrids, or transformed plants, where sports or mutants may be spontaneous or induced, and 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.

Provisions & Limitations

The USPTO states patents to plants, which are stable and reproduced by asexual reproduction, and not an edible tuber reproduced plant, such as a potato. As stated in Title 35 United States Code, Section 161: "Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent, therefore subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for plants, except as otherwise provided. In order to obtain the protection, you must meet the requirements of patentability. The USPTO states the following are met:

That the plant was invented or discovered in a cultivated state, and asexually reproduced.
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 a potato or Jerusalem artichoke;
That the inventor named for a plant patent application must be the person who actually invented the claimed plant, i.e., discovered or developed and identified or isolated, and asexually reproduced the plant;
That the plant has not been patented, in public use, on sale, or otherwise available to the public prior to the effective filing date of the patent application with certain exceptions;
That the plant has not been described in a U.S. patent or published patent application with certain exceptions;
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.;
That the invention would not have been obvious to one having ordinary skill in the art as of the effective filing date of the claimed plant invention.

The Application & Legal Representation

Anyone seeking this type of patent should consult with the USPTO’s website before filing their application to ensure new requirements haven’t been made or changed. The government agency wants applicants to be aware they may prosecute their applications through the services of a registered patent attorney or agent. According to the USPTO, if the applicant is the assignee (juristic entity), then it is required a patent practitioner be used. Note that the USPTO will not help in the selection of an attorney or agent.

Hartman Global: Intellectual Property Law Attorneys

For nearly 30 years, Hartman Global has expertly navigated clients through the process of protecting inventors’ ideas and creations. Their expert team specializes in patents, trademarks, copyrights, licensing, joint development, consultant agreements, and litigation support. For more information on Hartman Global IP Law and their services, visit http://www.hartmanglobal-ip.com.