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.

Plant Patent overlap with Utility Patents

In many cases it is also possible to obtain US utility patent protection on constituents of a plant and/or tissues that have novel, useful and unobvious features, such as biomolecules, genes, buds, pollen, fruit, or cells, where there has been a level of inventor manipulation to create such constituents or tissues. The requirements for US utility patents are more rigorous than for US plant patents, but in many cases both types of patent protection may be available for the same new variety.

Utility patents have been issued on a wide variety of plant-related inventions, including:

(1) methods of breeding plants;

(2) methods for producing transgenic or edited plants, including using CRISPR technologies;

(3) plant parts and products, such as seeds, starches, and gums;

(4) herbal medicines and supplements;

(5) chemicals made by plants, including formulations comprising flavonoids, cannabinoids, alcohols, and resistant starches;

(6) non-naturally occurring amino acid molecules isolated from plants, such as peptides and proteins;

(7) non-naturally occurring nucleic acid molecules isolated from plants;

(8) plant cells, including individual cells and plant tissue cultures;

(9) individual plants, such as inbreds, hybrids, and varieties, whether produced through genetic editing or traditional breeding; and

(10) groups of plants, such as open-pollinated populations and synthetics.


Plant Patent versus Plant Variety Protection Act protection

Protection under the Plant Variety Protection Act (PVPA) is available for sexually reproduced plants, i.e., those reproduced from seeds. See our discussion of the PVPA here. PVPA certificates are issued by the Department of Agriculture, not the Patent Office. A PVPA certificate can provide the owner with 20 years (or 25 years for trees and vines) of exclusive rights to the variety. However, these rights are more limited than those provided by US plant or US utility patents, and there are exemptions and compulsory licensing requirements under the PVPA.  Outside of the US, plant patent protection may be obtained through “Plant Breeder’s Rights” (PBRs). The attorneys at Sierra IP Law, PC - Patents, Trademarks & Copyrights have extensive experience in preparing and prosecuting plant patent applications. Our attorneys also have associations with plant patent attorneys and professionals in several different countries to assist clients in obtaining PBRs (foreign plant patent equivalent) in those countries. Additional information may be obtained from the United States Patent and Trademark Office web site for plant patents.

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