Plant Patents

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By Rich Stim

Since 1930, the United States has been granting plant patents under the Plant Patent Act to any person who first appreciates the distinctive qualities of a plant and reproduces it asexually. Asexual reproduction means reproducing the plant by a means other than seeds, usually by grafting or cloning the plant tissue. If a plant cannot be duplicated by asexual reproduction, it cannot be the subject of a plant patent. In addition, the patented plant must also be novel and distinctive. Generally, this means that the plant must have at least one significant distinguishing characteristic to establish it as a distinct variety. For example, a rose may be novel and distinctive if it is nearly thornless and has a unique two-tone color scheme. Tuber-propagated plants (such as potatoes) and plants found in an uncultivated state cannot receive a plant patent. (35 United States Code, Sections 161–164.)

There is a limit on the extent of plant patent rights. Generally, a plant patent can only be infringed when a plant has been asexually reproduced from the actual plant protected by the plant patent. In other words, the infringing plant must have more than similar characteristics—it must have the same genetics as the patented plant.

Juman Made Plants

A human-made plant can also be the subject of a utility patent. These plants can be reproduced either sexually (by seeds) or asexually. For example, utility patents have been issued for elements of plants such as proteins, genes, DNA, buds, pollen, fruit, plant-based chemicals, and the processes used in the manufacture of these plant products. To obtain a utility patent, the plant must be made by humans and must fit within the statutory requirements (utility, novelty, and nonobviousness). The patent must describe and claim the specific characteristics of the plant for which protection is sought. Sometimes the best way to meet this requirement is to deposit seeds or plant tissue at a specified public depository. For example, many countries have international depositories for such purposes.

Although a utility patent is harder and more time-consuming to acquire than a plant patent, a utility patent is considered to be a stronger form of protection. For example, a plant protected by a utility patent can be infringed if it is reproduced either sexually or asexually. Since the utility patent owner can prevent others from making and using the invention, does this mean the purchaser of a patented seed cannot sell the resulting plants to the public? No, under patent laws, the purchaser can sell the plants but cannot manufacture the seed line.