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Plant Patents

What is asexual reproduction?

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The USPTO grants a plant patent to whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state.

Asexual Reproduction

The plant must be found stable by asexual reproduction. By definition that means, "Creating a plant using techniques such as grafting, budding, or using cuttings, layering, or division without using seeds. Plant offspring will be substantially identical to the parent."

Methods of Asexual Reproduction

Asexual reproduction is the propagation of a plant to multiply the plant without the use of genetic seeds to assure an exact genetic copy of the plant being reproduced.

Any known method of asexual reproduction which renders a true genetic copy of the plant may be employed.

Acceptable modes of asexual reproduction would include but may not be limited to: Rooting Cuttings - Grafting Budding - Apomictic Seeds - Bulbs - Division - Slips - Layering - Rhizomes - Runners - Corms - Tissue Culture - Nucellar Embryos

The purpose of asexual reproduction is to establish the stability of the plant. This second step of the invention must be performed with sufficient time prior to application for patent rights to allow the thorough evaluation of propagules or clones of the claimed plant for stability thus assuring that such specimens retain the identical distinguishing characteristics of the original plant.

Requirements

Other requirements for a plant patent include the following:

  • That the plant was invented or discovered and, if discovered, that the discovery was made in a cultivated area.

  • That the plant is not a plant which is excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part, as with potato or Jerusalem artichoke.

  • That the person or persons filing the application are those who actually invented the claimed plant; i.e., discovered or developed and identified or isolated the plant, and asexually reproduced the plant.

  • That the plant has not been sold or released in the United States of America more than one year prior to the date of the application.

  • That the plant has not been enabled to the public, i.e., by description in a printed publication in this country more than one year before the application for patent with an offer to sale; or by release or sale of the plant more than one year prior to application for patent.

  • That the plant be shown to differ from known, related plants by at least one distinguishing characteristic, which is more than a difference caused by growing conditions or fertility levels, etc.

  • The invention would not have been obvious to one skilled in the art at the time of invention by applicant.

Where doubt exists as to the patentability of a specific plant, a qualified legal authority should be consulted prior to applying to assure that the plant satisfies statutory requirements and is not exempted from plant patent protection.

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