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Plant Patents 101

Mon Feb 7th, 2022 by  Patents

Should you apply for a plant patent? While plant patents can be immensely valuable, they are not well-understood. Many inventors who are eligible for plant patents fail to file, and many people who believe they are eligible for plant patents do not meet the requirements for registration with the U.S. Patent and Trademark Office (USPTO). In this article, Alabama patent attorney Hunter Adams provides an overview of what entrepreneurs and companies need to know about plant patents.

What is a Plant Patent?

As the USPTO explains, plant patent registration is available to those who have, “invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state.” The term “plant” includes:

  • “A living plant organism which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction, but cannot otherwise be ‘made’ or ‘manufactured.’”
  • “Cultivated sports, mutants, hybrids, or transformed plants, where sports or mutants may be spontaneous or induced, and hybrids may be natural, from a planned breeding program, or somatic in source.”
  • “Algae and macro-fungi.”

What Protection Does Plant Patent Registration Afford?

Plant patent registration affords the patent owner several exclusive rights. This includes the exclusive right to:

  • Asexually reproduce the patented plant;
  • Use, offer for sale or sell the asexually reproduced patented plant;
  • Use, offer for sale or sell any part of the asexually reproduced patented plant; and,
  • Import the patented plant, or any part of the patented plant, into the United States.

How Long Does Plant Patent Protection Last?

Plant patent protection lasts for 20 years from the date of filing with the USPTO.

What is Required to Register a Plant Patent with the USPTO?

There are several requirements for a plant to be patentable under U.S. law. Some of the key requirements include:

  • The plant must be invented or discovered in a cultivated state and reproduced asexually;
  • The inventor named in the patent application must be the person who actually invented or discovered the claimed plant;
  • The plant must not be described in a prior U.S. patent registration or application (subject to certain exceptions);
  • The plant must not be in public use, on sale or otherwise available to the public (subject to certain exceptions); and,
  • The plant must be different from known plants “by at least one distinguishing characteristic,” and it must be non-obvious to a person having ordinary skill in the art.

How Do You Obtain a Plant Patent in the United States?

Obtaining a plant patent in the United States involves filing an application with the USPTO. Due to the challenges involved in filing a successful patent application, it is recommended that anyone seeking to register a plant patent consult with a registered patent attorney.

Discuss Filing for a Plant Patent with a Skilled Alabama Patent Attorney  

Alabama patent attorney Hunter Adams represents entrepreneurs and companies seeking to register plant patents with the USPTO. To discuss your (or your company’s) plant patent application with Mr. Adams in confidence, please call 251-289-9787 or request a free initial 30-minute consultation online today. We assist clients throughout the state including Mobile, Huntsville, and Birmingham.