Plant Patent: & Overview

What Is a Plant Patent?

A plant patent is an intellectual property right that protects a new and unique plant’s key characteristics from being copied, sold or used by others. A plant patent can help an inventor secure higher profits during the patent protection period by preventing competitors from using the plant. Plant patents in the United States are granted by the United States Patent and Trademark Office (USPTO) to the inventor or the inventor’s heirs.

How a Plant Patent Works

A patentable plant can be natural, bred or somatic (created from non-reproductive cells of the plant). It can be invented or discovered, but a plant patent will only be granted to a discovered plant if the discovery is made in a cultivated area.

The plant can be an alga or a macro fungus, but bacteria do not qualify.

The plant must be asexually reproducible, and the reproduction must be genetically identical to the original and performed through methods such as root cuttings, bulbs, division, or grafting and budding to establish the plant’s stability. Tubers, such as potatoes and Jerusalem artichokes, are also not eligible for plant patents, nor are plants that are unique only because of growing conditions or soil fertility.

Like any invention, a plant must be non-obvious to qualify for patentability. A different type of patent, the utility patent, applies to certain plants, seeds, and plant-reproduction processes.

Requirements for a Plant Patent

An inventor has one year within selling or releasing the plant to apply for a plant patent. The USPTO will only grant a plant patent if the inventor provides a full and complete botanical description that explains how the plant is unique and includes drawings showing the plant’s unique features. The applicant must also comply with the other detailed requirements for a patent application and pay the relevant fees.

A plant patent can have two named inventors: one who discovered the plant and one who asexually reproduced it. If the invention is a team effort, every member of the team can be named as a co-inventor.

While a plant patent protects the inventor’s intellectual property rights for 20 years from the patent-application-filing date, the patent application itself becomes public 18 months after the earliest patent filing date, which means competitors will be able to learn the details of the invention much sooner.

In addition to applying for a plant patent, an inventor might also need to apply for a utility patent or a design patent to fully protect the plant. For example, if the new plant variety has a unique appearance, the inventor would want both a plant patent and a design patent.