What is a plant patent?
If you have invented or discovered and successfully asexually reproduced a new and distinct variety of plant (excluding a plant found in an uncultivated state or a tuber propagated plant) you can apply for (and be granted) a plant patent from the United States Patent and Trademark Office (USPTO). This patent can be granted to an inventor or their heirs or assigns and lasts 20 years from the date of filing the initial application. This patent protects the owner from the reproduction, selling, or use of the plant so reproduced.
A Note on Content and Arrangement
If you are familiar with the requirements for a utility application, you’ll note that they are (with some exceptions) very similar to those for a plant application. Per Title 37 of the Code of Federal Regulations, Section 1.163(a)), a plant application must contain as “full and complete a botanical description as reasonably possible” of the plant you wish to patent along with the characteristics which differentiate that plant from known, related plants.
A Note on Preparation of the Application
Merely having sufficient background information on specific classes of plants will not suffice to satisfactorily complete the plant patent application (Source: Innovate Product Design patent application form). You must be thoroughly familiar with the plant’s characteristics, and be able to demonstrate the stability of the plant. You can satisfy these requirements thusly:
- Discovery: identification of a novel plant, can take place in any cultivated area.
- Asexual reproduction: testing the plant to assure it is unique and not as a result of disease, infection, or exposure to agents that temporarily cause a visual change rather than a legitimate change in the plant’s genotype.
The following tips are offered to assist in the successful completion and submission of your plant application:
- Be diligent in choosing a name that has not been previously used or is similar to another plant of the same botanical class or market.
- Drawings should be filed in duplicate, specifically submit two formally mounted sets of drawings with the application at the time of filing. Ensure that the clarity and scale is appropriate to reproduction – even reduction – in publication. Also, include a transmittal sheet to itemize each component of your submission.
- Each submission should be filed in a separate envelope and include a SASE postcard that itemizes each component in the application (including serial number).
- If a model of a patent of acceptable format and content, describing a related plant or one in the same market class is available, use it.
- Be sure to sign the oath or declaration with permanent ink or its equivalent no earlier than three months prior to the filing of the application.
- If color is a distinguishing characteristic of the plant, make sure to specify the color of the plant using an established color dictionary which is recognized in this country (e.g., Pantone).
- Include all appropriate filing fees (search fee, examination fee, etc.)
- To avoid unnecessary delays, direct pre-examination questions to the USPTO Examiner (telephone).
The author of this article has worked in the patent and design industry. He gathered sources from http://www.uspto.gov/web/offices/pac/plant/index.html#15 to write this article.