Under 35 U.S.C. § 161, a Plant Patent may be granted to “whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state.” For the last two decades, about 1,000 plant patent applications have been filed yearly. See USPTO, U.S. Patent Statistics Chart Calendar Years 1963-2019, uspto.gov, https://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm, (last visited April 9, 2021). Although that only makes a small percentage of the yearly filings, about the same number are granted each year, indicating that they have a higher acceptance rate than other types of patent applications. See Id.
These plant patents last for 20 years, measured from the filing date of the application. The rights granted after obtaining a plant patent include the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant, or any of its parts, in the United States. It also protects the patent owner’s right to exclude others from importing the plant or any part of the plant into the United States. However, these rights are limited to one plant. For example, a plant derived from a sport or mutant would not likely have the same genotype as the original plant and would therefore not be covered under the original plant patent’s protection.
Plant patents can be (1) a living plant organism which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction, but cannot otherwise be “made” or “manufactured,” (2) cultivated sports, mutants, hybrids, or transformed plants, or (3) algae and macro-fungi, excluding bacteria. Qualifying sports or mutants may be spontaneous or induced, and hybrids may be natural, from a planned breeding program, or somatic in source. However, if a plant mutant is naturally occurring, it must have been discovered in a cultivated area.
Similar to a utility patent, a plant patent must also meet the general requirements of patentability, it must be subject matter eligible, new, useful, and non-obvious. Also similar to a utility patent, much of the application and specification requirements are the same. The specification must include (1) the title of the invention, (2) cross references to related applications, (3) a statement regarding federally-sponsored research and development, (4) a background of the invention, (5) a summary of the invention, (6) a brief description of the drawing, (7) a claim and, (8) an abstract. However, a plant patent application also differs from a utility patent application in several aspects.
First, in the specification, a plant patent is limited to one claim. Second, the specification includes the addition of a detailed botanical description of the plant, the Latin name of the genus and species of the plant, and the variety denomination. For a proper botanical description, the applicant must ascertain the genus and species, the habit of growth, the cultivar name, the precocity (flowering or ripening), the botanical characteristics of plant structures, the fertility, and any other characteristics which distinguish the plant. Lastly, the oath or declaration required in a plant patent application not only includes the affirmations used in utility patent oath or declarations, but also a statement affirming that the applicant has asexually reproduced the plant and/or found the plant in a cultivated area.
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