Can you patent a plant?

Can You Get A Patent For A Plant?

PATENTING PLANTS

Can you patent a plant? Yes you can get a patent for a new plant. If it is useful, novel, non-obvious, asexually (not seed) reproduced, and it is not alga, bacteria, fungus, or tuber-propagated you may be able to get a plant patent. In other words, if it is patent eligible subject matter, and meets the usual criteria for patentability, yes you can get a patent for a plant. In fact to seek protection for plants there are three options: 1. plant patents, 2. utility patents, and 3. plant variety certification for protection of new plants. 

All three forms of legal protection for new plants. Each of the three kinds of legal protection for new plants has its unique requirements. For example, plants discovered in the wild cannot be patented in a plant patent, but there may be potential for patenting as a utility patent. However, plants discovered in cultivated areas can be allowed a plant patent. So, that amazing new strain of marijuana that is growing in your flower bed or that you have bred may be patentable. 

Plant And Plant Related Things That Can Be Patented

There are several kinds or types of plants that can be patented. And, there are several aspects and products of plants that can be patented. For example, new and discovered plants and plant element types that can be patented include:

  • New plants.
  • Discovered plants (must be discovered in a cultivated area).
  • Transgenic plants (and processes used to produce).
  • Traits of plants.
  • Component parts of plants (chromosomes, genes, etc.).
  • Products made from plants (fruits, seeds, and oils).
  • Materials made from plants.
  • Breeding and culturing methods.
Brief Overview Of Plant Patenting Laws

Brief overview of plant patenting laws

Can you patent a plant? Yes. There are two laws and a treaty that directly impact and are related to protecting new and discovered plants. 

First, patenting plants started with the Plant Patent Act of 1930 (PPA). The PPA made it possible to get a plant patent through the United States Patent and Trademark Office (USPTO) for asexually reproduced new plants and those discovered in a cultivated area. 

Second, the Plant Variety Protection Act of 1970 (PVPA) provides plant breeders up to 25 years of exclusive control over new seed and tuber-propagated plants. The PVPA provides 20 years of exclusive control for plants, and 25 years for trees and shrubs. This act in the United States (US) is also the US’s connection to and compliance to the treaty. 

Lastly, internationally, there is one treaty. The treaty is the International Union for the Protection of New Varieties of Plants (UPOV). Under this International treaty plant breeders may be granted rights when the plants meet the four criteria of the UPOV. The four UPOV criteria are similar to those for getting plant variety certification. Under the UPOV, the four criteria are: 1. novel, 2. distinct, 3. homogeneous, and 4. stable. 

Plant Patents Available For New Plants

Can you patent a plant? Yes, in Plant patents

Can you patent a plant? Yes. In order to be patentable in a plant patent a new or discovered plant can be bred, natural, or somatic. It cannot be tuber-propagated, wild, or uncultivated. Tuber-propagated plants include artichokes, potatoes, and yams. Only plants that are asexually reproduced can be allowed a plant patent. The asexual reproduction can be accomplished using any of the usual methods provided it results in a genetically identical plant. 

A plant patent application contains at least a description of the plant, its characteristics and habitat, as well as reference to similar plants. Read more about writing a patent application for a new or discovered plant here. Plant patent applications may require biological deposits of the new plants. Additionally, photos of the plant and/or its growth and development are often necessary to show the new/unique features.  

Plant patents are limited to protecting the actual plant detailed in the patent. In other words, infringement is only likely where the infringing plant has actually been asexually reproduced from the actual plant protected under the patent. Thus, like genetically modified organisms (GMOs), things like fruits, seeds, and oils are protected with utility patents. 

Utility Patents For New Plants

Utility patents FOR NEW PLANTS

Can you patent a plant? Yes. In order to be patentable in a utility patent a new plant must meet all the usual criteria for patentability. Eligible plants can be reproduced either from seeds or asexually. However, they must be made by humans. Utility patent applications for plants require biological deposits of the new plants. Also, photos of the plant and/or its growth and development are often necessary to show the new/unique features. 

The kinds of things that can be allowed a utility patent for a new plant include fruits, seeds, transgenic plants, traits of plants, component parts of plants, products and materials made from plants, and breeding and culturing methods for plants.

Plant Variety Certification

Plant variety certification

Can you patent a plant? Yes, but if not, there is plant variety certification. In order to be eligible to get a plant variety certification a new plant must meet four criteria. The four eligibility criteria are that the plant: 1. be new (not sold or otherwise exploited for more than one year), 2. distinct (can be distinguished from known varieties), 3. uniform (describable and consistent), and 4. stable (reproductions remain unchanged). Plant variety certificates permit the right to exclude others from selling, reproducing, or using it to produce a hybrid. The term (length) of protection is 20 years for most plants, and 25 years for trees and shrubs. 

Unlike plant patents, but like utility patents for plants, the kinds of plants that can be granted plant variety certification include plants reproduced from seeds and tuber-propagated plants. However, plant variety certification is focused on protection of the natural material. 

Read more about Plant Variety Protection and how to get your new plant certified at the United States Department of Agriculture (USDA) here

Can You Get A Patent On A Marijuana Plant Or Product

Can you get a patent on a marijuana plant or product?

Can you patent a plant? Yes. Yes you can get a patent on a new marijuana plant, product, or maybe even new device or equipment related to marijuana. In spite of federal law making marijuana illegal, the USPTO can and has issued patents related to marijuana.