Can You Patent a Plant? Yes, Here is How:
Plant Patents
Can you patent a plant? Absolutely. In order to qualify for a plant patent, the plant must meet the usual criteria for patentability: it must be 1. patent eligible subject matter; 2. useful; 3. novel; and 4. non-obvious. Most notably, the plant must be new and distinct from other existing plant varieties.
The new plant can be created or discovered. However, the new plant cannot be discovered in the wild or in uncultivated areas. The new plant must be asexually reproduced to be eligible for a plant patent. Asexually reproduced plants reproduce using somatic (non-reproductive) cells, resulting in offspring that share the exact genetic makeup of the parent plant. The asexual reproduction can be accomplished using common techniques like cuttings, grafts, and other methods as long as it results in a genetically identical plant.
One exception is that plants propagated through tubers are not eligible for protection under a plant patent even though they are produced asexually. Examples of tuber propagated plants include artichokes, potatoes, and yams. Plants produced from seeds (sexually produced plants) are not eligible for protection under a plant patent.
Important Note: Algae and macro-fungi are considered plants under the Plant Patent Act (PPA) therefore qualify for plant patents. However, bacteria do not qualify. Plants that are novel and distinct solely due to specific soil or growing conditions also do not qualify for a plant patent.
A plant patent application contains at least a description of the plant, its characteristics and habitat, as well as references to similar plants. Plant patent applications may require biological deposits of the new plants. Additionally, photos of the plant and/or its growth and development are often necessary to demonstrate the new and distinct features of the plant.
Plant patents are limited to protecting the actual plant detailed in the patent. In other words, infringement is only likely when the infringing plant has been asexually reproduced from the actual plant protected under the patent. Thus, products of plants such as fruits, seeds, and oils are protected using utility patents instead of plant patents.
Utility Patents for Plants
Can you patent a plant using a utility patent? Yes, you can. In order to be patentable using a utility patent, a new plant must meet the usual criteria for patentability: 1. patent eligible subject matter; 2. useful; 3. novel; and 4. non-obvious.
Plants must be made by humans to be eligible for utility patents. Plants that are eligible for utility patents can be reproduced from seeds or reproduced asexually, including tuber propagation. This is unlike plant patents, which are limited to asexually reproduced plants that are not tuber propagated. That means a utility patent for a plant can be infringed if the plant is reproduced sexually (by seed) or asexually.
Utility patents can also be issued for elements of plants such as genes, proteins, tissues, seeds, and fruits. They can also be issued for transgenic plants, traits of plants, products and materials made from plants (such as plant-based chemicals), and breeding and culturing methods for plants. Unlike a plant patent, a utility patent can even protect genetically engineered bacteria.
Utility patent applications for plants often require biological deposits of the new plants such as seeds or plant tissue. Also, photos of the plant and/or its growth and development are often necessary to demonstrate the new and unique features of the plant.
Plant Variety Protection Certification
can you patent a plant if your plant variety does not qualify for a plant patent? Yes, your plant variety may still qualify for plant variety protection certification. Although this is not a patent, it is legal protection granted by the United States Department of Agriculture (USDA).
To qualify for a plant variety protection certificate, the plant variety must be: 1. new (not sold or otherwise exploited for more than one year); 2. distinct (can be distinguished from known varieties); 3. uniform (describable and consistent); 4. stable (reproductions remain unchanged); and 5. appropriately named.
Like utility patents for plants, plant variety protection certification can be issued for plant plants reproduced from seeds as well as asexually produced plants, including tuber propagated plants. However, plant variety certification is focused on protecting natural material.
Plant variety protection certificates permit the right to exclude others from selling, reproducing, or using the plant variety to produce a hybrid. The term (length) of protection is 20 years for most plants, and 25 years for trees, vines, and shrubs.
Read more about Plant Variety Protection and how to get your new plant certified at the United States Department of Agriculture (USDA).
International UPOV Registration
Plant breeders can also seek intellectual property protection for plant varieties through the International Union for the Protection of New Varieties of Plants (UPOV). According to the UPOV, a plant variety is a precisely-defined group of plants with shared characters. This precisely-defined group is selected from within one species of plant.
The criteria that must be met to be granted rights under the UPOV are similar to the criteria that must be met for plant variety protection certification. The criteria are as follows: 1. new; 2. distinct; 3. uniform; 4. stable; and 5. appropriately named.
Only the breeder of a plant variety can seek legal protection for the plant under the UPOV. If a person discovers a plant, they must also develop the plant into a variety to gain breeder’s rights. The breeder can apply for breeder’s rights in the country they live in if their country is a member of the UPOV as well as all other member countries of the UPOV. The term of protection is 20 years for most plants, and at least 25 years for trees and vines. The UPOV does not grant legal protection for a trait (such as flower color), a chemical or other substance of a plant (such as oil), or a technology for breeding plants.