All About Plant Patents

Around 1931, a horticulturist named Henry Bosenberg, who had always been enticed by the natural beauty and fragrance of roses, developed a method by which they grow along a surface, like a fence or a brick wall. He went to the US Patent and Trademark Office (USPTO) and asked if there was a way that he could get the intellectual property rights for this new type of flower. At the time, there was no way available. The USPTO went into action and the US government set up a new patent classification system: the plant patent. The implementation of this type of patent gave botanists the ability to develop new plant hybrids and sell them without worrying about unfair competition. Henry Bosenberg's climbing rose was granted US plant patent #1.

A plant patent can be granted to an inventor that has developed or discovered a new type of plant that has been asexually reproduced and has not been raised in an uncultivated state. This leaves a lot of wiggle room for the botanical inventor. Still, this definition may leave the gardener scratching their heads.

First of all, asexual reproduction is the practice of propagating a plant without using seeds. A gardener has likely done this by taking leaf cuttings from their favorite flowering plant and putting them in soil. It's important to recognize that tubers of a plant - which can be found on potatoes or artichokes - cannot be used in the asexual reproduction of a patented plant. Secondly, if the plant is discovered, it must come from a cultivated area, and not from a nearly barren territory.

There are a number of benefits to getting a plant patent. Most notably, a plant patent lasts twenty years. This gives you a very long period of time to sell the plant and be absolutely sure that no one will rightfully capitalize on the plant other than yourself or your company. If you're a voracious gardener and know a thing or two about plant hybrids, you'll be glad to know your creations can be protected. In addition, any sports, hybrids, mutative strains or transformed plants are considered favorable candidates for plant patents. If you're a scientist who's come across a new type of algae or fungus, these can also be patented. In any case, the inventor of the plant is the person who asexually reproduced the plant. If you discovered it but gave it to a colleague to propagate it, then your colleague will be the person who owns the plant's intellectual property rights.

Like any patent, the application of a plant patent must fully describe the plant in terms understood by the USPTO. The patent's language must refer to terminology and classification described in the United States Code (Title 35) and the Code of Federal Regulations (Title 37). There are multiple parts to a plant patent application. Some may find that applying for a patent is not too far off from writing a thesis paper, so it will need to be thorough and concise. Perhaps the most crucial part of the plant patent application is the description of the novel plant. It must be very clear about what makes that plant special. Prior-art, or invented plants that have very similar characteristics, must be reviewed and contrasted. Brevity in this section is considered mandatory. One thing that helps the inventor in receiving a plant patent is the inclusion of plant drawings in the application. These must be neat, detailed and submitted in india ink.

The application will be evaluated and a search will be done to see if other protected ideas exist that are closely related to the inventor's idea or discovery. In addition, the obviousness of the plant - which is a measure of its originality - will be assessed. The USPTO will carefully comb through the application and recent scientific research to make sure that the new plant is stable and doesn't pose a significant mutagenic threat. All information in the plant patent application will be weighed during the decision process, so a plant inventor will need to be very careful to do his or her best.

The patent may take a number of months to be fully reviewed. If it is accepted, the inventor will be notified and asked to pay a patent issue fee. After that, the owner of the plant patent is free to build a business on it or sell the patent.