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Plant Patents: Can a Plant be Invented?

By Jill Gilbert Welytok

In 1931, the U.S. Supreme Court granted a patent to Henry Bosenberg for his climbing, ever-blooming rose. This was the first time the Supreme Court had acknowledged the now well-established principal that an inventor of a plant is the first person who "discovers" and reproduces its distinctive qualities by breeding or grafting.

Plants that already exist in a wild or uncultivated state can't be patented. They occur freely in nature, rather than as the product of some sort of scientific discovery.

Plant patents are easier to get than utility patents, but they provide less protection. A holder of a plant patent can't protect someone from purchasing patented seeds and then legally selling the plants they've grown. However, the holder of a utility patent can claim infringement if a plant covered by the patent is sold without permission. The protection afforded by a plant patent is the exclusive right to reproduce the plant.

Business Tip:
Some plant development processes may qualify for utility patent protection, which is broader than the protection afforded by plant patents. Plant patents do not prevent the sale of plants grown from patented seeds.

The requirements for plant patents differ slightly than the requirements for utility patents. Instead of novelty, utility and non-obviousness, plant patents require novelty, distinctiveness and non-obviousness. The requirement of distinctiveness is substituted for the requirement of utility.

To meet the distinctiveness requirement, your plant must have been asexually produced. This means that the plant is reproduced by a method other than seeds. This usually involves cutting or grafting of plant tissue. This criteria replaces the usefulness requirement of utility patents.

Novelty can be assessed by looking at the characteristics that make the plant different from other plants. Generally, plant patent applications speak to issues of soil composition requirements, color, odor, taste and durability of the plant. The non-obviousness requirement looks to the extent which the plant represents an innovation or improvement over existing plants, given the state of the horticultural art.


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