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Applying for Plant Patents

A plant patent is granted by the U.S. government to an inventor (or the inventor's heirs or assigns) who has 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. Following is an overview of the plant patent application process. (Note: Anyone seeking a patent should contact the U.S. Patent and Trademark Office (USPTO) just before filing of an application, to ensure that new requirements have not been made, and that the fees filed with the application are sufficient, as such are subject to change.)

Preparing the Application

While background information for specific classes of plants may be readily available, one seeking to file a plant patent application should be thoroughly familiar with the characteristics of the plant, and must assure that the plant is stable. Invention for purposes of a plant patent is a two step process:

  • The first step is the discovery step which involves the identification of a novel plant. This step could be performed in any cultivated area. It could involve the identification or recognition of an off­type plant in a monoculture of a known variety or the identification of a desirable mutant which was either spontaneous or induced. Or, it could result from the identification or recognition of an outstanding individual within the progeny of a cross made in a planned breeding program.

  • The second step, which consists of asexual reproduction, tests the stability of the claimed plant to assure that the plant's unique characteristics are not due to disease, infection, or exposure to agents which cause a change in the plant's appearance which is transitory and not due to a change in the genotype of the plant.

It is important that each of the above steps is satisfied before an application is filed. The inventor of a plant must have discovered or identified the novel plant, and must have asexually reproduced the plant and observed the clones so produced for a sufficient amount of time to have concluded that the clones are identical to the parent plant in all characteristics. It would be inappropriate to file an application before the second step of invention had been completed. Filing of an application before the second step of invention has been completed will result in rejection of the claim as being premature and non­statutory.

Contents of the Application

An application for a plant patent must usually include:

Oath or Declaration. The applicant (or applicants) for a plant patent must be the person (or persons) who has (or have) invented or discovered and asexually reproduced the new and distinct variety of plant for which the patent is sought. In addition to the averments required for a utility application's oath or declaration, those applying for a plant patent must also state that applicant(s) has or have asexually reproduced the plant. If the plant is a newly found plant, the oath or declaration must also state that the plant was found in a cultivated area.

The Drawing. Plant drawings are normally photographic, but may be presented in other mediums, such as in permanent water color renderings, which faithfully present the appearance of the plant. Such drawings are not mechanical drawings and should be artistic and competent in their execution. Figure numbers and reference characters need not be used unless specifically required by the examiner. The drawing must disclose all of the distinctive characteristics of the plant which are capable of visual representation.

Final Preparation and Assembly

Before an application is filed, the (clones of the) plant must have been carefully observed during the testing process. Because the botanical description of the plant must be reasonably complete, it would not suffice to describe just the fruit, or flower, or bark, or leaves of any specific plant, even if these plant parts were the valuable substance of the plant in commerce or the only parts seem to be distinctive or different. It would be inappropriate to describe just the bark, roots and juvenile growth of a rootstock, even if only these parts would normally would be seen by or important to the consumer who was to purchase the plant.

In preparation of a plant patent disclosure, all parts of the plant should be carefully observed through at least one growth cycle and such observations should be recorded in detail.

Important Note on the Plant Patent Application Process

The amount of detail required in a plant patent application is determined on a case­by­case basis, and is determined by the similarity of the prior art plants to the plant being claimed. The examiner will evaluate the completeness of the application. The examiner's judgment may be tempered by the level of activity in a specific market class. The botanical description of a plant in a market class with a high level of commercial activity may require greater detail, substance and specificity than that for a plant in a market class of little activity. Learn more about Plant Patents and the Application Process from the USPTO.

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