Can you patent a plant? Yes. If the plant is useful, novel, non-obvious, distinct, not produced by seed or tuber propagation, and is not a bacterium, 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 a patentability study, you can apply for a plant patent.
A plant patent is not the only way you can seek intellectual property rights to a plant. There are five options for seeking intellectual property protection for plants: 1. plant patents; 2. plant variety protection certifications; 3. protections issued by the International UPOV; 4. utility patents; and 5. trade secrets. This article discusses these options for seeking protection for plants.
All of these forms of legal protection apply to new varieties of plants. Each type of legal protection comes with its own specific requirements. For instance, plants discovered in the wild cannot be patented using a plant patent, but they can potentially be patented as a utility patent. On the other hand, plants discovered in cultivated areas can be eligible for 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.
9 Plant and Plant-Related Things That Can Be Patented
There are several types of plants, as well as several aspects and products of plants, that can be patented. Examples of plants and their elements that are patentable include the following:
- New plants (including mutants and hybrids).
- Discovered plants (must be discovered in a cultivated area).
- Transgenic plants (and methods used to produce them).
- Traits of plants (such as color).
- Component parts of plants (chromosomes, genes, proteins, cells, tissues, etc.).
- Products made from plants (fruits, seeds, and oils).
- Materials made from plants.
- Breeding and culturing methods.
- Algae and macro-fungi.
5 Kinds of Intellectual Property Protection for Plants
To seek protection for plants there are five options: 1. plant patents, 2. plant variety certification, 3. International UPOV, 4. utility patents, and 5. trade secrets. The various plant and plant-related things on this list can be protected by at least one of the following options for seeking intellectual property protection for plants.
Plant Patent Act: The United States started granting specific patents for plants with the Plant Patent Act of 1930 (PPA). Thanks to the PPA, new asexually reproduced plants that are not discovered in the wild are eligible for protection using a plant patent through the United States Patent and Trademark Office (USPTO). Plant patents expire 20 years after the patent application is filed.
Plant Variety Protection: Plants can be legally protected through means other than patents. A United States federal law called the Plant Variety Protection Act (PVPA) protects seed reproduced and tuber propagated plants in addition to asexually reproduced ones. The Plant Variety Protection Office (PVPO) grants certificates that provide 20 years of legal protection for new varieties of plants, and 25 years for new varieties of trees, shrubs, and vines.
International UPOV: The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organization that ensures certain international property rights to breeders of new plant varieties. 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.
Utility Patent: Utility patents issued by the USPTO can protect plants and plant-related things. Under a utility patent, it is possible to protect new plant varieties, transgenic plants, component parts of plants (such as modified genes, proteins, seeds, pollen, and fruits), and methods for producing or using certain plants. As with all utility patents, plant-related utility patents expire 20 years after the patent application is filed.
Trade Secrets: A trade secret can be any business information or process that adds value to a business by remaining a secret. A trade secret cannot be registered or filed to a government entity such as the USPTO, and protection can last as long as the trade secret is kept secret. There are trade secrets that relate to plants, with the breeding of new hybrid cultivars being the most common. Check out our article on trade secrets.
Can You Patent a Plant? Yes, Here is How.
Plant Patent Requirements
Can you patent a plant? Absolutely. In order to qualify for a plant patent, the plant must meet the usual criteria for patentability: it must be 1. patent eligible subject matter; 2. useful; 3. novel; and 4. non-obvious. Most notably, the plant must be new and distinct from other existing plant varieties.
The new plant can be created or discovered. However, the new plant cannot be discovered in the wild or in uncultivated areas. The new plant must be asexually reproduced to be eligible for a plant patent. Asexually reproduced plants reproduce using somatic (non-reproductive) cells, resulting in offspring that share the exact genetic makeup of the parent plant. The asexual reproduction can be accomplished using common techniques like cuttings, grafts, and other methods as long as it results in a genetically identical plant.
One exception is that plants propagated through tubers are not eligible for protection under a plant patent even though they are produced asexually. Examples of tuber propagated plants include artichokes, potatoes, and yams. Plants produced from seeds (sexually produced plants) are not eligible for protection under a plant patent.
Important Note: Algae and macro-fungi are considered plants under the Plant Patent Act (PPA) therefore qualify for plant patents. However, bacteria do not qualify. Plants that are novel and distinct solely due to specific soil or growing conditions also do not qualify for a plant patent.
A plant patent application contains at least a description of the plant, its characteristics and habitat, as well as references to similar plants. 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 demonstrate the new and distinct features of the plant.
Plant patents are limited to protecting the actual plant detailed in the patent. In other words, infringement is only likely when the infringing plant has been asexually reproduced from the actual plant protected under the patent. Thus, products of plants such as fruits, seeds, and oils are protected using utility patents instead of plant patents.
Utility Patents for Plants
Can you patent a plant using a utility patent? Yes, you can. In order to be patentable using a utility patent, a new plant must meet the usual criteria for patentability: 1. patent eligible subject matter; 2. useful; 3. novel; and 4. non-obvious.
Plants must be made by humans to be eligible for utility patents. Plants that are eligible for utility patents can be reproduced from seeds or reproduced asexually, including tuber propagation. This is unlike plant patents, which are limited to asexually reproduced plants that are not tuber propagated. That means a utility patent for a plant can be infringed if the plant is reproduced sexually (by seed) or asexually.
Utility patents can also be issued for elements of plants such as genes, proteins, tissues, seeds, and fruits. They can also be issued for transgenic plants, traits of plants, products and materials made from plants (such as plant-based chemicals), and breeding and culturing methods for plants. Unlike a plant patent, a utility patent can even protect genetically engineered bacteria.
Utility patent applications for plants often require biological deposits of the new plants such as seeds or plant tissue. Also, photos of the plant and/or its growth and development are often necessary to demonstrate the new and unique features of the plant.
Plant Variety Protection Certification
If your plant variety does not qualify for a plant patent, your plant variety may still qualify for plant variety protection certification. Although this is not a patent, it is legal protection granted by the United States Department of Agriculture (USDA).
To qualify for a plant variety protection certificate, the plant variety must be: 1. new (not sold or otherwise exploited for more than one year); 2. distinct (can be distinguished from known varieties); 3. uniform (describable and consistent); 4. stable (reproductions remain unchanged); and 5. appropriately named.
Like utility patents for plants, plant variety protection certification can be issued for plant plants reproduced from seeds as well as asexually produced plants, including tuber propagated plants. However, plant variety certification is focused on protecting natural material.
Plant variety protection certificates permit the right to exclude others from selling, reproducing, or using the plant variety to produce a hybrid. The term (length) of protection is 20 years for most plants, and 25 years for trees, vines, and shrubs.
Read more about Plant Variety Protection and how to get your new plant certified at the United States Department of Agriculture (USDA).
International UPOV Registration
Plant breeders can also seek intellectual property protection for plant varieties through the International Union for the Protection of New Varieties of Plants (UPOV). According to the UPOV, a plant variety is a precisely-defined group of plants with shared characters. This precisely-defined group is selected from within one species of plant.
The criteria that must be met to be granted rights under the UPOV are similar to the criteria that must be met for plant variety protection certification. The criteria are as follows: 1. new; 2. distinct; 3. uniform; 4. stable; and 5. appropriately named.
Only the breeder of a plant variety can seek legal protection for the plant under the UPOV. If a person discovers a plant, they must also develop the plant into a variety to gain breeder’s rights. The breeder can apply for breeder’s rights in the country they live in if their country is a member of the UPOV as well as all other member countries of the UPOV. The term of protection is 20 years for most plants, and at least 25 years for trees and vines. The UPOV does not grant legal protection for a trait (such as flower color), a chemical or other substance of a plant (such as oil), or a technology for breeding plants.
