What You Should Know About Plant Patents
A patent is a type of intellectual property protection for inventions and other useful developments. There are three types of patents. A design patent protects a product's special design or unique appearance. A utility patent protects things like processes, manufactured goods, and new and useful machines, or improvements thereto. The third type of patent is a plant patent. It is available to people who have cultivated a new, distinctive plant.
What Is Required for a Plant Patent?
Plant patents are available for new types of plants. They can take the form of hybrids, mutants, and sports. There are three basic requirements for a plant patent:
The plant must be cultivated
The inventor must demonstrate an ability to reproduce the plant asexually
The plant must be unique and distinctive
Hybrids may occur naturally, and mutants and sports may occur spontaneously. If you discover plants of this nature in a cultivated area, you can apply for a plant patent. However, you cannot patent a plant that occurs naturally out in the wild.
In plants, asexual reproduction means creating new plants by some means other than planting seeds. Successful asexual reproduction is required for a plant patent because it demonstrates that the plant is stable. You must be able to demonstrate that it is identical to the original plant. Means of reproducing a plant asexually include budding, dividing, grafting, or by taking root cuttings.
To be eligible for a patent, the plant must have at least one distinguishing characteristic that makes it different from other known plants to which it might be related. The difference cannot result from the fertility of the soil or other conditions under which it was grown.
What Plants Are Ineligible for Patents?
One of the fundamental requirements for any type of patent is that it be a new invention or discovery that is non-obvious to those knowledgeable in the field. Bacteria are not eligible for plant patents, but macro-fungi and algae are. Plant patents are not available for tubers, such as Jerusalem artichokes or potatoes.
A plant that does not qualify for a plant patent may nevertheless qualify for one of the other types of patents, either a utility patent if it is useful or a design patent if it has unique features.
Why Is a Patent Important?
If you are the inventor (or discoverer) of a new type of cultivated plant, a patent gives you exclusive rights to grow, reproduce, and sell it. This means that if your plant is particularly useful or desirable, only you and people to whom you grant permission can profit from it. If someone violates your patent, you can enforce it in court.
You can submit an application for a patent, but it takes time for the application to be processed and either activated or rejected. It is important for you to know the status of your patent application. There are multiple ways that you can check patent status, and the internet makes it easy.
However, there are also downsides to owning a plant patent. There are fees involved in first applying and then maintaining the patent after it is issued. Patent protection does not last forever. A plant patent lasts 20 years. Furthermore, the information in your patent application eventually becomes public. That means that other people can duplicate your methods after your patent expires.
How Do You Apply for a Plant Patent?
Before filing a patent application, you want to perform a search of existing patents to ensure that your invention or discovery is truly unique. You also want to write an invention disclosure that describes the plant you are patenting in technical detail. It is important to describe the plant's asexual reproduction as well as the unique features that make it distinctive.
After you file your patent application, the process is out of your hands. An examiner at the U.S. Patent and Trademark Office evaluates it to make sure that it meets the criteria, such as non-obviousness, novelty, and usefulness. You should be informed of the status of your patent, or you can check on it yourself.
