There are a few people who will claim that you can’t patent a plant. This is not true. In fact, there is a particular process for doing exactly that. Here is what you need to know.
The Types Of Plants You Can Patent
There is one article in the US code about patenting plants, and this is 35 US Code section 161. It states that you can patent a plant if you invent or discover and then asexually reproduce it. The plant you discover has to be in a cultivated state, and this article excludes plants that you can spread with tubers. You can even share inventorship if one person discovers a new plant but someone else finds a way to asexually reproduce it.
Asexual reproduction is an important sticking point. It means that you get a new plant by some means other than getting a fertilized seed in the ground. You will have to make a clone of the first plant. The methods for doing this includes:
- Planting rhizomes (bits of root)
- Taking cuttings (twigs)
- Layering
- Planting bulbs
- Grafting and budding
- Division
- Using corms
- Planting slips
- Using runners
- Nucellar embryos
- Planting apomictic seeds (seeds that don’t go through meiosis)
The plant itself can be capable of sexual reproduction; you just have to be able to asexually reproduce it too. Tubers are excluded because we eat the part that is planted. However, algae and fungi fit the bill just fine.
The plant in question has to fit the criteria for other types of patents as well. It can’t have been on sale, patented, or in use before you filed for it. It has to have at least one distinguishing characteristic that isn’t due to the environment from all other related plants, and the plant can’t be an obvious invention for anyone with normal skills in horticulture. The patent office only accepts plants discovered or invented in a cultivated state too.
How Can You Apply?
Your first step in applying for a plant patent is to discover and asexually reproduce a novel plant. Once you have done that, you can file an application with the US patent office.
After this, you can go to the USPTO website, where you find the latest forms, information on fees, and information on how to file.
However, there are some basic requirements that you should know about before you go to the website and start downloading. An application should have an:
- Invention title
- Statement regarding Federal-sponsorship and research if any is involved
- Latin name of species and genus
- Description of the plant that is as complete as possible
- Variety denomination
- Background of the invention
- Cross-reference of any applicable related patents
- Description of how your plant is distinct from other related plants
- Drawing of the plant, preferably with duplicates
- Description of the drawing
- Claim (generally the whole plant, but not its uses or parts)
- Abstract and disclosure
- Oath or declaration that you are the one who has made the plant
You can also fill out a utility application for a patent if your plant doesn’t quite fit the requirements for a plant patent. The utility patent is very similar in form.
It can be a little technical, but there are certified patent lawyers and agents who can help you. They are even required if you are the assignee.
What Can You Do Once You Have A Patent?
A plant patent is in effect for 20 years from the date of filing. During that time, you will be the only one allowed to asexually reproduce the plant, sell it, import it, or use it. It confers the same rights as the utility patent. In other words, you get to profit from your invention.
If you have questions about patenting your plant or you want to protect it from patent infringement, Larson & Larson can help. Contact us for more information.