Under 35 U.S.C. § 161, you can get a plant patent for inventing or discovering and asexually reproducing a distinct and new variety of plant. The requirement that the plant is invented or discovered limits patent protection to plants created through breeding or other human efforts. “Plant” as used in the law is not used in its strict scientific sense but in its ordinary, accepted sense. Only one claim is allowed, and the patent covers the entire plant.
Asexual reproduction can include rooting cuttings, layering, budding, grafting, and other similar techniques. Plants that are able to sexually reproduce can be considered for a patent if they were asexually reproduced. This includes hybrids, cultivated sports, mutants, and newly found seedlings that were discovered in a cultivated state. The law excludes tuber-propagated plants and plants that are found in an uncultivated state.
Tuber propagated plants refers to such plants as Irish potatoes. Tuber means the stubby thick part of a branch that is underground. The exception of tuber-propagated plants is made because this is a group that is reproduced by the same part of the plant that is sold as food.
When a plant patent is granted, others are excluded from asexually reproducing the plant or using it, offering it for sale, selling it, or importing it. A plant patent has the same rights as a utility patent. The term of a plant patent is 20 years after the application filing date.
The elements of a plant patent application are application transmittal form, fee transmittal form, application data sheet, specification, drawings, and an inventor’s declaration or oath. The claim will be in the specification, which should disclose the plant as well as its distinguishing characteristics.
The specification will also include in formal terms the title of the invention, cross-references, a statement about federal research, the Latin name of the plant’s genus and species, the plant’s variety denomination, the background, a summary, a description of the drawing, a detailed botanical description, a single claim, and an abstract of the disclosure. The specification should include how and where the variety of plant was asexually reproduced or the area where it was discovered.
The claim should not be directed towards a fruit or flower that is part of the plant. The claim must specify the plant or tree. The title of the invention will need to relate to the entire plant, such as “pomegranate tree” rather than “pomegranate.”
If the examiner finds the written description of the plant deficient, it may be possible to clarify or add a description in the patent. However, it cannot be totally inconsistent with or unrelated to the original description and photograph. Any drawings must be executed artistically and competently in compliance with the examination rules.
The applicant may also need to provide specimens of the plant, its flower, or its fruit at a particular stage of growth for study and inspection. Specimens should not be forwarded unless requested. If it is not possible to forward the specimens to the examiner but inspection is required, you will need to make the plant available where it is grown.
Plant patent applications are subject to the same type of examination as utility patents and require the applicant to show patentable subject matter, utility, novelty, non-obviousness, disclosure, and claim specificity. The patent examiner will have to consider prior art by doing a patent search. An examiner may need to get a report from the Department of Agriculture, the Agricultural Research Service, or the Horticultural Research Branch.
