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. |