New plant varieties may be protected in the U.S. under:

  • Plant Variety Protection Act (PVPA) – for seeds and tubers; issued by the U.S. Plant Variety Protection Office (U.S. PVPO);
  • Plant Patents – for asexually propagated plants except tubers; issued by the U.S. PTO; and/or
  • Utility Patents – for any type of plants (e.g., seeds, genes, etc.) showing utility; issued by the U.S. PTO.

Each type of protection has differing scope and requirements.  Here, we address coverage under plant patents.  The right to a plant patent is found in 35 U.S.C. § 161, which reads:

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, may obtain a patent therefor, subject to the conditions and requirements of this title.

Plants that are eligible for protection under the statute include cultivated sports, mutants, hybrids, and new seedlings.  Algae and macro fungi are included; fungi, however, are excluded.  The following plant types are also not covered by the statute:

  • Tuber propagated plants (examples include Irish potato and the Jerusalem artichoke); and
  • Plants found in an uncultivated state (such as, plants found in the wild or discovered by chance).

One unique aspect of a plant patent is that the inventor must not only invent or discover a distinct and new variety of plant, but also must asexually reproduce the plant.  Asexual reproduction (or cloning) may be performed through the use of:  rooting cuttings, grafting and budding, apomictic seeds, bulbs, division, slips, layering, rhizomes, runners, corms, tissue culture, and/or nuclear embryos.

Plant patents provide rights similar to those conferred by utility patents: there is a “right to exclude” from asexually reproducing, selling, or using the plant.  Also like utility patents, plant patents expire 20 years from the filing date of the patent application; once a plant patent expires, the subject matter is in the public domain.  Unlike utility patents, however, plant patents do not require the payment of maintenance fees to stay in force for the entire 20-year period.

The statute also requires that a plant on which an application is filed meet patentability requirements.  Before getting into the patentability requirements of plant patents, we will examine a plant patent application in part two of Plant Patent Basics:  The Plant Patent Application.