Plant Patent Primer
A step-by-step guide for protecting your new plants with a U.S. plant patent.
September 13, 2011
These days, it's hard to flip open the pages of a plant catalog or see a plant tag without the notation "PPAF" or "USPP#." Most people in our industry know these notations stand for "Plant Patent Applied For" and "U.S. Plant Patent No. #." The acronyms indicate a United States plant patent has been applied for, or that a U.S. plant patent has been granted.
U.S. plant patents are a great way to protect the intellectual property rights of a plant, increase a company's royalties and generate revenue, as well as create an intellectual property portfolio. But a question remains: What is a U.S. plant patent?
A U.S. plant patent is a property right that protects asexually reproduced plant varieties, which include many vegetative ornamental plants, trees, vines and fruit plants. The owner of a U.S. plant patent has the right for 20 years from the filing of a patent application to exclude others from making, using, offering for sale or selling the protected plant or any of its parts throughout the United States.
Under U.S. laws, there are three basic requirements for a plant to be protected by a U.S. plant patent:
1. The plant must be asexually reproducible (but the plant must not be tuber propagated);
2. The plant must be distinct and new; and
3. The plant must have been found or discovered in a cultivated area.
It is important to remember there are several other factors that may determine a plant's eligibility for U.S. plant patent protection, including whether the plant has been offered for sale, sold, made publicly available or licensed more than one year prior to the U.S. plant patent application filing date.
Once it has been determined that a plant fits the descriptions of the three requirements listed already, the next thing to do is determine who can apply for a U.S. plant patent. In the United States, the inventor or applicant is always the person who applies for the patent. Therefore, any person who invents or discovers and asexually reproduces the new plant may file for U.S. plant patent application.
There are several pieces of information that must be provided to file a U.S. Plant Patent application:
1. An application must provide a complete botanical description of the plant, as well as the plant's origin. This is a key requirement of an application in that the botanical description must be as complete and accurate as possible;
2. An application must include at least one color photograph of the plant, including the distinguishing characteristics of it; and
3. A signed declaration or oath by the inventor or breeder of the plant.
It is important to note that under U.S. law and unlike their international counterparts (i.e., plant breeders' rights), a submission or deposit of plant material is not required for the issuance of a U.S. plant patent. In addition, there are no maintenance or annuity fees due during the life of a granted U.S. plant patent.
Once a U.S. Plant Patent application has been received by the U.S. Patent & Trademark Office, the application will be processed. If the application requirements have been met, a filing receipt will be received with details of the application, such as the application number, the filing date and confirmation of the inventor's name.
After an application has been filed, it can take anywhere from one to three years for a patent to issue. However, as can be expected, the prosecution steps that occur after an application is filed can vary, and the amount of time it takes to receive a granted U.S. plant patent from the time of application depends on a number of factors. A couple of factors are whether the application requirements were met at the time of filing or whether there are any discrepancies, inconsistencies or missing information in the application. The application requirements and process can be complex, so consult a patent attorney if you would like to file a U.S. plant patent application.
Protecting new plants is becoming increasingly important as the plant industry continues to evolve toward using intellectual property protection as an asset. U.S. plant patent protection is only one of the intellectual property tools an inventor or company can use for its new plants. However, protecting a new plant can help increase revenue and royalty stream, while also building up an intellectual property portfolio.
Barbara Campbell and James M. Weatherly are attorneys in the Intellectual Property, Technology & Media Department of Holme Roberts & Owen LLP in Denver, Colo. Campbell and Weatherly have more than 10 years of experience defending horticultural and biotechnology-based patents, plant patents, United States plant variety protection, plant breeders' rights. Campbell can be reached at 303-866-0571 or email@example.com. Weatherly can be reached at 303-866-0544 or firstname.lastname@example.org.