What Is a Plant Patent?

Patents are important to ensure that individuals continue to strive to create new, useful, and non-obvious inventions in the United States. A patent is what officially protects an inventor by preventing anyone else from using, making, or selling the invention for a certain period of time after the patent is issued. There are three types of patents available in the United States – design patents, utility patents, and plant patents. Here, we want to discuss what plant patents are as well as the process of obtaining one of these patents.

The Basics of a Plant Patent

Unless you are involved in industries that revolve around plants (agriculture, pharmaceuticals, medical research, etc.), you might not even be aware that a plant patent can be obtained. A plant patent is only available for plants that are new and distinctive, and this can be a high burden of proof to meet. Additionally, a plant patent can only be obtained if the creator has been able to asexually reproduce the plant.

  • A plant is asexually reproduced if it is reproduced by means other than seeds, such as cutting the plant or grafting it.
  • Asexual reproduction for a plant patent is required because this provides proof that the patent applicant can duplicate the plant.

Another caveat to a plant patent is that the plant cannot be a tuber propagated plant (such as the Irish potato). Additionally, a plant that is found in an uncultivated state is not eligible for a plant patent.

Who Is the Inventor of a Plant Patent?

There are two basic steps involved in “inventing” or cultivating a new plant.

  1. Inventing or discovering the new or distinct plant
  2. Asexually reproducing the new or distinct plant

There is the possibility that more than one person is the official inventor of a new plant. For the purposes of a plant patent application, the inventor is any person who has contributed to either of the two aspects of inventing a new plant.

How Long Does a Plant Patent Last?

A plant patent lasts for a term of 20 years from the date the patent is awarded, and this gives the inventor the right to prevent other people from asexually reproducing the plant. This patent also gives the patent holder the right to prevent others from selling the plant.

Seek Legal Assistance To Help You With Your Plant Patent

It is crucial for any person seeking a plant patent to work with a skilled Orange County intellectual property attorney familiar with these exact patents. Specifically, find a lawyer who has helped a person obtain plant patents in the past. The first step in the process is to file an application with the United States Patent and Trademark Office (USPTO).

  • A provisional patent application can be filled out by the creator of the plant in order to give them a one year period to figure out the specifics of their plant and ensure that it meets all of the requirements for patent production.
  • A non-provisional patent application officially begins the USPTO examination process to determine whether or not the plant is eligible for patent protection.

The patent application process can become highly technical, and it is very important to ensure that you fill out the application properly and pay the appropriate fees. If the USPTO has any questions related to the patent, you want to have an attorney by your side who can help answer these questions and get the process moving in the right direction.