Can plants be invented? Yes, according to the United States Patent and Trademark Office (USPTO). In order to encourage invention in agriculture and botany, you can patent plants discovered through cultivation or specifically created by either breeding or grafting a new genotype. A plant patent or seed patent gives you sole rights to asexually reproduce, sell or use the plant or seed you reproduced for 20 years.
If you are planning to market your new plant or seed, a plant patent gives you the vital level of protection that you need to prevent others from simply reproducing your variety without permission. This is what makes the often excruciating process of developing a new plant variety worth it and gives you a competitive edge. A plant patent lawyer from the Priori network can ensure that your patent application is completed as efficiently and successfully as possible.
About Plant Patents
Any unique, new plant discovered or created in an area of cultivation that produces asexually can be patented. A plant for the sake of a plant patent is defined as a living plant organism comprised by a distinct set of characteristics determined by a single genetic makeup or genotype that can be duplicated through asexual reproduction but not otherwise be "made" or “manufactured." This can include mutants or hybrids of existing plants. While not scientifically categorized as plants, you can get plant patents for algae and macro fungi.
Unlike other types of patents, the characteristics that define what makes a new plant “novel” are somewhat clearer, since a simple genetic test can easily establish whether or not two plants are unique. Plant patents do not, however, like other patents, have to be “non-obvious.” Since it is challenging to develop a new plant variety that is stable and preserved by asexual reproduction, any new, novel varietal is distinctive enough with at least one distinguishing characteristic.
Limitations of a Plant Patent
Not all newly discovered plants can be patented. The following are some exceptions:
- Plants discovered in the wild that naturally reproduce on their own;
- Tuber propagated plants; and
- Plants that are only distinct from related plants due to growth conditions, water and soil fertility levels, or other similar factors.
In addition, plant patents are limited in their protection somewhat, as only a plant with the same genetics as the patented plant is considered in violation. Simply having a similar appearance, characteristics, or use is not enough to bring a lawsuit.
Unlike most patents, plant patents can—and often do—have multiple co-inventors, since there are two stages of “invention” for new plants. A patented plant must be first created or discovered, and second, it must be cloned through asexual reproduction. Anyone who contributed to either step of invention can be considered a co-inventor. That said, if the asexual reproduction is performed by a custom propagation service or tissue culture company, the inventor remains the person who discovered the plant and contracted the second company for reproductive services.
The cost of a plant patent can vary significantly, depending on a variety of factors. Priori lawyers can guide you through the process from approximately $225 to $600 per hour. In order to get a better sense of cost for your particular situation, put in a request to schedule a complimentary consultation and free price quote from one of our lawyers.
What is asexual reproduction in terms of plant patents?
Any method that promulgates the plant varietal without the use of genetic seeds is considered asexual reproduction. Root cuttings, bulbs, division, grafting and budding, and apomictic seeds are some of the most common ways this is done.
How long does a plant patent take to file?
The average plant patent takes 32 months to get approved. As the most complex type of patent issued, plant patents take the longest to process. Luckily, you are protected from the moment you file, so talk to a patent lawyer right away to begin the process.
How soon after discovering or creating a new plant species must I file for a plant patent in order to get protection?
You have a grace period of one year after the disclosure of a new plant variety during which you can still file for a plant patent and get protection.