Plant Patent InformationLandscape Gardening Plants Patent Information

Plant Patent Information

What is a plant patent?

A plant patent is granted by the US Patent and Trademark Office to a plant breeder who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a plant found in an uncultivated state (naturally occurring). The grant, which lasts for 20 years from the date of filing the application, protects the breeder’s right to exclude others from asexually reproducing, selling, or using the plant.

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What types of plants are covered by Plant Patents?

The plant patent asserts protection to such things as:

  • 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 which cannot otherwise be "made" or "manufactured."
  • 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.

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Is my plant selection eligible for a Plant Patent?

Whoever invents (breeds) 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.

The subject matter of the application would be a plant which is developed or discovered by applicant, and which has been found stable by asexual reproduction. To be patentable, it would also be required:

  • 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 anywhere in the world including 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 or abroad for 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.

When doubt exists as to the patentability of a specific plant, a qualified legal authority should be consulted prior to applying to assure that the plant satisfies statutory requirements and is not exempted from plant patent protection. Ozbreed can assist at all levels.

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What rights are conveyed by a Plant Patent?

Grant of a patent for a plant precludes others from asexually reproducing or selling or using the patented plant. A plant patent is regarded as limited to one plant, or genome. A sport or mutant of a patented plant would not be considered to be of the same genotype, would not be covered by the plant patent to the parent plant, and would, itself, be separately patentable, subject to meeting the requirements of patentability. A plant patent expires 20 years from the filing date of the patent application. As with utility applications, when the plant patent expires, the subject matter of the patent becomes public domain.

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What is involved in the patent application and review process?

A breeder that wishes to attain a plant patent must file a plant patent application. It is suggested that those seeking a patent, first contact the patent office to confirm that the application protocol and associated fees have not changed.

The application must containing specific information relating to the new plant and its origin and must be presented in accordance with a specific protocol outlined by the USPTO. Among other things, the applicants are asked to provide a detailed account of the new plant’s classification, its physiology, and the breeding process. The appropriate filing fee must be included, with the application, for it to be considered for review.

This can become a daunting task even for those with plant patent experience. An improperly filed plant patent application can result in your loss of intellectual property rights for your new variety. It is absolutely critical that your application is presented in the specified manor; professional assistance is recommended.

Once your application has been filed, it is reviewed in the USPTO Initial Processing Branch by application examiners for formal requirements. If found in compliance, the application is then forwarded to the examining group, where it is classified and assigned to a patent examiner. When the application is taken up by the examiner, it is again examined for formalities.

If the application is formal, complete and determined by the examiner to be drawn to a plant which was both novel and unobvious, the application will be allowed by the examiner and a notice of allowance forwarded to the applicant.

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How much can a breeder expect to spend on a Plant Patent?

Today, the patent application filing expenses alone will cost over $1,500. Unfortunately, filing costs are only a small portion of the overall investment needed to take a patent from application to a published grant. For any given plant, it is common for us to spend $3000 to $5000 and potentially more depending on several factors with the USPTO.

In addition to the monetary investment, a great deal of time must be invested into the patent process. Here at Ozbreed, we employ the services of patent attorneys in addition to having a patent office liaison on staff. Between the two, countless hours are spent before a patent is finally approved by the USPTO examiner. How much is your time worth to you?

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Can I protect my new plant in other countries?

Yes, most countries (excluding the US) that allow breeders to patent their new plants under Plant Breeders’ Rights laws. From country to country, the basic concept is the same: to protect a breeder’s intellectual property and to prohibit others from illegally producing, marketing and selling the plant without expressed written consent.

The application process is similar to the US but several significant differences do exist:

  • Filing costs tend to be roughly the same as they are in the US but most have annual maintenance fees.
  • The term of the patent is typically different. The statute for eligibility typically follows two simple rules: the plant may not have been sold in that particular country for more than one year or sold anywhere else in the world for longer than four years. In the US, the rule states that the plant may not have been sold anywhere in the world for longer than one year.
  • The term of the PBR is typically longer than that of the US Plant Patent. In Europe for example, patents lasts from 25 to 30 years depending on the variety.

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What is the future of Plant Patenting?

In recent years, the US and much of the world has experienced a sharp increase in the number of patented plants. More and more breeders from around the world are beginning to realize that there is substantial revenue potential in patenting their new selections.

In response to the growing number of plant patent applications, the United States Patent and Trademark Office (USPTO) has begun to scrutinize applications more closely. The number of applications is increasing while the number of Patent Grants awarded is decreasing. Simply put, as more plant breeders attempt to protect their new cultivars, the USPTO is forced to discern the true validity of the claim that each “new” cultivar is in fact different from its predecessor.

Below is a statistical graph that illustrates this point (data from the USPTO):

Plant Patent Applications vs Patent Grants

To the breeder this equates to tougher application review by the USPTO and, ultimately, more trouble obtaining a patent. That is when using breeder services, like those provided by Ozbreed, becomes a benefit.

Most plant breeders are also nurserymen that have a business to run and cannot afford to devote countless hours to the patent application and review process; this is our business. Ozbreed employs an in-house USPTO liaison and keeps patent attorneys on retainer for additional aid; we have made patent administration an integral part of our business.

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What is the benefit of a plant patent?

Plant patents, plant marketing and the subsequent royalty revenue they create can be a great source of supplemental income for years to come; protect your plant, protect your future.

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