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Plant Patents: Overview

Patents are generally granted to ideas that are useful, novel, or non-obvious in a few different situations. One situation where a patent may be available is when a person invents or discovers a new and useful machine, composition of matter, manufactured good, or process; or improves upon any of these. A patent for this type of situation is called a utility patent, and it is the most common type of patent sought in the United States.

A design patent, meanwhile, is available to protect the unique appearance or design of a manufactured object. Please keep in mind that if a person wants to protect both the utility and the ornamentality of an object, he or she will need to file both a utility patent and a design patent.

The final type of patent that a person can apply for and acquire is a plant patent. Plant patents are available for the invention or discovery of a new and distinct plant. In order to receive patent protection for a plant, the applicant must be able to reproduce the plant asexually.

Regardless of the type of patent you're seeking to obtain, you must file a patent application with the United States Patent and Trademark Office (USPTO), the government body responsible for reviewing and determining if an invention or discovery is eligible for patent protection. If you would like more information related to this topic, as well as information about other types of intellectual property, you can visit FindLaw's Intellectual Property section.

What Is a Plant Patent?

First of all, plant patents are only available for plants that are new and distinctive. In addition, a person can only obtain a plant patent if he or she has been able to asexually reproduce the plant. A plant is asexually reproduced if it is reproduced by means other than by seeds, such as by cutting or grafting the plant. Asexual reproduction is a requirement of a plant patent because it provides proof that the applicant can duplicate the plant. In order to receive patent protection, the plant can't be a tuber propagated plant (i.e. an Irish potato) or a plant that is found in an uncultivated state. This patent lasts for 20 years and gives an inventor the right to exclude other people from asexually reproducing the plant, as well as using or selling the plant.

Who Is the Inventor?

Since there are two steps to "inventing" a plant -- inventing or discovering a new and distinct plant and asexual reproduction of that plant -- there is a possibility that more than one person is the inventor. Generally speaking, an inventor is anyone who has contributed to either aspect of inventing a plant. If, however, an inventor directs that asexual reproduction be performed by a service, the people performing that service are not considered co-inventors.

Getting Legal Help

Filing for a patent involves following a specific set of procedures and including very specific information in an acceptable format. Failure to follow the procedures exactly can result in an application being denied or not receiving full protection for your invention or discovery. If you have questions about plant patents or would like help filing an application for a plant patent, it's in your best interest to contact an experienced patent attorney in your area.

Next Steps
Contact a qualified business attorney to help you identify
how to best protect your business' intellectual property.
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