Most people are familiar with utility and design patents, but may be surprised to learn that the U.S. also offers a specific type of patent for new plant varieties.
Yes, You Can Patent a Plant
In fact, U.S. law has allowed plant patents for nearly a century! A plant patent protects a new, distinct variety that can be reproduced asexually, meaning you can create genetically identical copies through methods like cuttings or grafting.
Once granted, the patent gives you exclusive rights for twenty years to control how the variety is propagated, sold, or licensed. For breeders and growers, those rights can offer meaningful commercial value.
What Makes a Plant Patentable
To qualify, your plant has to meet a few key requirements.
First, it must be new and distinct. That means it should have a characteristic—appearance, growth habit, color, flavor, or another trait—that clearly sets it apart from existing varieties. The difference must come from the plant’s genetics, not from the environment where it grew.
Second, the plant has to be invented or discovered in a cultivated setting. Wild plants found growing in nature aren’t eligible unless they’re first moved to cultivation and the new distinct variety arises there.
Third, the plant must be capable of asexual reproduction, and you must already be able to reproduce it that way. Asexual reproduction — cuttings, grafting, budding, layering, divisions, bulbs, and similar methods — is what ensures the resulting plants are true copies of the original.
Plants propagated by tubers, like potatoes, are excluded. But fungi and algae are eligible, and many flowering or fruiting plants qualify as long as they can be reliably reproduced without seeds.
Benefits of Patenting a Plant
A plant patent gives you the exclusive right to propagate, sell, and license your new variety. That means others can’t legally clone your plant or profit from it without your permission.
For nurseries and breeders, this protection often supports stronger pricing, clearer branding, and better control over how a variety enters the market. It can also deter unauthorized propagation, which is something that’s otherwise very difficult to prevent once a cutting leaves your hands.
How to Get Started Patenting a Plant
The process begins long before any paperwork is filed. Start by confirming that your plant is truly distinct and that you can reproduce it asexually with consistent results. Good documentation is helpful: note the unique traits, photograph the plant from multiple angles, and keep records of how it compares to related varieties.
From there, most applicants work with a patent attorney. Plant patent applications rely heavily on clear descriptions and highly detailed drawings, and getting those elements right can make the difference between a smooth examination and unnecessary delays.
Once the application is prepared, your attorney files it with the USPTO. In some cases — especially where the innovation goes beyond the plant itself — a utility patent may be the better path, and an attorney can help you determine which option fits.
Just starting out? Check out this guide for first-time patent filers.
How a Patent Attorney Can Help
Plant patents seem straightforward at first glance, but the USPTO is particular about how new varieties are described, illustrated, and distinguished from existing plants. A patent attorney can help make sure your application meets the technical standards, explains what makes the plant truly new, and avoids common pitfalls during examination.
If you’re ready to protect a new plant variety or want help deciding which type of patent makes sense, Larson & Larson can guide you through the process. Contact us today.
Published by Larson & Larson, a Florida-based intellectual property law firm protecting innovation since 1987.
