Plant Patent - A general discussion by experienced attorneys

The attorneys at Sierra IP Law, PC - Patents, Trademarks & Copyrights have the experience and expertise needed to help their clients obtain US and non-US patent protection for plants, and have obtained numerous plant patents for their clients over the years. US plant patents may be granted to anyone who invents or discovers and asexually reproduces a distinct and novel variety of plant. For example, a grower may notice a difference in a branch on a tree in an orchard (often referred to as a sport, mutation or hybrid) where the branch has one or more characteristics that differ from the rest of the tree - such as early or late harvest, larger crop size, seedless fruit, etc. Or, a grower may notice a seedling that has grown up in an orchard that has one or more unique characteristics in comparison to the other trees in the orchard. If these characteristics can be repeated and shown to be stable by asexual reproduction of plant material taken from the branch or seedling, and other requirements are met, it is often possible to obtain US plant patent protection for the new variety. However, it should be understood that plant patents cannot be issued for tuber-propagated plants and uncultivated plants.

In order to obtain a plant patent on a new variety, detailed botanical information must be obtained about the variety to be included in the patent application. For this, the attorneys at Sierra IP Law, PC - Patents, Trademarks & Copyrights have developed associations with several professionals, including Dr. Katherine Waselkov, an assistant professor in the Biology Department at California State University, Fresno, who assists as a botanical consultant for plant patent applications. The attorneys and Dr. Waselkov work with grower clients to observe and record the necessary botanical details of the new plant variety for the patent application.

A US plant patent lasts for 20 years from the filing date of the application, and provides the patent owner with proprietary rights in the asexually reproducing plant. Anyone using, offering to sell, selling, or importing the asexually reproduced plant or any part thereof (including the crop) into the United States infringes the plant patent, and can be enjoined from doing so by the patent owner.