Plant breeders who develop new varieties through careful cultivation and selection face a unique challenge: how do you protect intellectual property that grows from the ground? The answer lies in plant patents, a specialized form of intellectual property protection that has been safeguarding botanical innovations for nearly a century.
Here is a basic overview: plant patents are a legal mechanism that grants exclusive rights to those who invent or discover and asexually reproduce new plant varieties. This foundational concept helps ensure that plant breeders can secure their innovations and reap the benefits of their work.
A plant invention is protected by plant patents, which provide exclusive rights to inventors who create or discover new plant varieties through asexual reproduction. Unlike utility patents, which protect mechanical inventions or processes, plant patents focus specifically on living organisms that can be reproduced without seeds. This protection encourages innovation in agriculture, horticulture, and botanical research by ensuring creators can benefit from their discoveries.
The Plant Patent Act of 1930 established this unique category of intellectual property protection, recognizing that plant breeding requires significant time, effort, and expertise. Plant patents can be granted for plant varieties that are invented or discovered, as long as they meet the necessary criteria. Since then, thousands of plant patents have been granted, covering everything from ornamental flowers to fruit trees, each representing years of careful development and testing under the United States patent system administered by the United States Patent and Trademark Office.
Understanding Plant Patent Requirements
Asexually Reproduced Plants Only
The cornerstone requirement for plant patent eligibility centers on asexually propagated plants. Asexually reproduced plants develop through methods that don’t involve seeds or sexual reproduction, such as grafting, budding, cutting, or tissue culture. This requirement exists because asexual reproduction ensures the new plant variety remains genetically identical to the parent plant.
Common examples of asexually reproduced plants include:
- Apple trees are propagated through grafting
- Rose varieties grown from cuttings
- Strawberry plants reproduce through runners
- Ornamental plants developed through tissue culture
Important Exclusions
Not all plants qualify for patent protection. The Plant Patent Act of 1930 specifically excludes tuber-propagated plants, such as potatoes, sweet potatoes, and Jerusalem artichokes. These plants reproduce through underground storage organs, and the exclusion prevents patents on basic food crops that are propagated this way.
Additionally, plants found in an uncultivated state cannot receive patent protection. The invention must involve human intervention and development, not simply the discovery of a naturally occurring variety.
Meeting the Patent Standards
Like all patents, plant patents must satisfy three critical criteria:
Novelty requires that the plant be a new and distinct plant, not being used or patented by others. The variety cannot have been publicly disclosed, sold, or offered for sale more than one year before filing the patent application.
Distinctiveness means the new plant must differ from existing varieties in one or more significant characteristics. These differences might include flower color, fruit size, disease resistance, or growth habits.
Non-obviousness ensures that the new variety wouldn’t have been obvious to someone skilled in plant breeding, given the existing knowledge and techniques available.
Navigating the Plant Patent Application Process
Filing Your Application
The plant patent application process begins with a complete botanical description of the new plant variety. This description must include the plant’s characteristics, how it differs from similar varieties, and the method of asexual reproduction used. Applicants should provide comprehensive information about:
- Physical characteristics (size, color, shape, texture, distinguishing features)
- Growing conditions and requirements
- Breeding history and development process
- Comparison with similar existing varieties
Documentation and Evidence
High-quality color photographs are essential components of every plant patent application. These images must clearly show the plant’s distinguishing characteristics and demonstrate how it differs from existing varieties. Professional botanical illustrations may supplement photographs when necessary.
The application must also include detailed breeding records, showing the development process and proving that the variety can be consistently reproduced through asexual propagation.
Examination Process
Patent examiners specializing in botany review plant patent applications. They verify that the claimed variety meets all requirements and conduct searches to ensure the plant is truly novel and distinct from existing varieties. The examination process typically takes 18-24 months, during which examiners may request additional information or clarification.
Rights and Enforcement Under Plant Patents
Exclusive Rights Granted
A plant patent grants the patent holder exclusive rights to asexually reproduce, use, offer for sale, sell, or import the patented plant variety in the United States. These rights prevent others from commercially exploiting the protected variety without permission.
Patent holders can license their rights to nurseries, commercial growers, or other parties, creating revenue streams from their innovations. Many successful plant breeding programs rely on patent licensing to fund ongoing research and development.
Patent Term and Duration
Plant patents remain in effect for 20 years from the date the application is filed. Unlike utility patents, plant patents cannot be extended, and no maintenance fees are required to keep them active. After expiration, the plant variety enters the public domain and can be freely reproduced by anyone.
Enforcement Mechanisms
Patent holders must actively monitor the market for potential infringement. When unauthorized reproduction or sale occurs, patent holders can pursue legal remedies, including injunctive relief and monetary damages. Documentation of the infringement and evidence of damages becomes crucial in enforcement proceedings.
Recent Developments in Plant Patent Law
Biotechnology and Transformed Plants
Modern biotechnology has raised new questions about the eligibility of plants for patenting. Transformed plants created through genetic engineering techniques may qualify for both plant patents and utility patents, depending on their characteristics and the methods used in their creation.
The intersection of traditional plant breeding with biotechnology continues to evolve, with patent law adapting to address these technological advances while maintaining the fundamental principles of plant patent protection.
Natural Plant Mutants and Patent Eligibility
Natural plant mutants discovered in cultivation present interesting patent eligibility questions. While plants found in completely wild, uncultivated states cannot be patented, mutants that arise in cultivated settings and are subsequently developed through human intervention may qualify for protection.
Recent case law has refined the boundaries of what constitutes sufficient human involvement to warrant patent protection, emphasizing the importance of development and cultivation efforts beyond mere discovery and invention.
Trends in Plant Patent Filings
Plant patent filings have increased significantly in recent years, driven by advances in breeding techniques and growing commercial interest in unique plant varieties. Ornamental plants continue to dominate filings, but food crops, landscape plants, and specialty varieties are gaining prominence.
The rise of plant breeding as a commercial enterprise, combined with improved propagation techniques, has made plant patents more valuable and accessible to a broader range of innovators.
Maximizing Your Plant Patent Strategy
Understanding plant patents enables breeders and innovators to protect their valuable botanical discoveries while contributing to the advancement of agricultural and horticultural. The Plant Patent Act continues to serve its original purpose: encouraging innovation by providing meaningful protection for those who dedicate time and resources to developing new plant varieties.
Whether you’re developing the next breakthrough rose variety or creating disease-resistant fruit trees, plant patents offer a pathway to protect and commercialize your innovations. Success requires careful attention to the application process, thorough documentation, and strategic thinking about how patent protection fits into your broader business objectives.
For plant breeders considering patent protection, consulting with experienced patent attorneys who understand botanical innovation can help navigate the complexities of plant patent law and maximize the value of your intellectual property investments.
Looking to Protect Your Intellectual Property?
Please contact Arlen Olsen at Schmeiser, Olsen & Watts LLP at aolsen@iplawusa.com.
About the Author
Mr. Olsen, a former adjunct professor of intellectual property law, has over 30 years of experience in all aspects of intellectual property law. Mr. Olsen is a founding Partner of Schmeiser, Olsen & Watts LLP and a former United States Patent Examiner. Mr. Olsen has prosecuted numerous patents that have been litigated and received damages of over 60 million dollars. Additional activities include teaching seminars, appearing as a guest lecturer on intellectual property matters for corporations and educational institutions, and evaluating and consulting with clients regarding the scope, enforcement, and protection of intellectual property rights.
