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Plant Patents

What is a plant patent? What does it mean to invent a plant?

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Plant Patent #1

The first plant patent issued - H.F. Bosenberg for a climbing or trailing rose.

A plant patent is granted to an inventor who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state.

Benefits of a Plant Patent

A plant patent lasts for 20 years from the date of filing the patent application and gives the inventor the right to exclude others from asexually reproducing, selling, or using the plant so reproduced. This protection is limited to a plant under the following conditions:
  • 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 can not 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.

Plant Patent Vs Plant Variety Protection Act

The United States Patent and Trademark Office or USPTO does accept utility applications for claims to plants, seed, genes, etc listed above. However, intellectual property protection for true breeding seed reproduced plant varieties is offered through the Plant Variety Protection Office.

The Plant Variety Protection Office (PVPO) administers the Plant Variety Protection Act (PVPA), by issuing Certificates of Protection in a timely manner. The Act provides legal intellectual property rights protection to developers of new varieties of plants which are sexually reproduced (by seed) or tuber-propagated.

USPTO Plant Patents - What Defines Being The Inventor

Because there are two steps which constitute invention in plant applications, there may be more than one inventor. An inventor is any person who contributed to either step of invention. For example, if one person discovers a new and distinct plant and asexually reproduces the plant, such person would be a sole inventor.

If one person discovered or selected a new and distinct plant, and a second person asexually reproduced the plant and ascertained that the clone(s) of the plant were identical to the original plant in every distinguishing characteristic, the second person would properly be considered a co-inventor. If either step is performed by a staff, every member of the staff who performed or contributed to the performance of either step could properly be considered a co-inventor.

However, an inventor can direct that the step of asexual reproduction be performed by a custom propagation service or tissue culture enterprise and those performing the service would not be considered co-inventors.

Next > Plant Patents - What Is Asexual Reproduction

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