Can you patent a plant in the United States?

Can you patent a plant in the United States?

Yes, it is possible to be granted a patent on a plant in the United States.  There are two different sections in United States Patent Law that might apply allow you to get a patent on a plant, Plant Patents under 35 U.S.C. 161 and Utility Patent under 35 U.S.C. 101.  Each of these sections cover different types of plants and grant different protections for the plants they cover.  Another notable method of protecting a newly invented plant from being used by other people is a Plant Variety Protection Certificate.  The Plant Variety Protection Certificate is granted by the United States Department of Agriculture rather than the United States Patent Office.

Plant Patents under 35 U.S.C. 161 – This section of allows a patent to be granted on plants that are reproduced by asexual reproduction.  That means the plant may be reproduced by means other than from seeds, such as by the rooting of cuttings, bulbs, budding, grafting, or tissue cultures.  Plants cultivated using tubers and wild or uncultivated plants are not patentable.  This would include plants like yams, potatoes and peanuts.  A plant patent under 35 U.S.C. 161 has a single claim that describe all the attributes of the plant.  The claim may also make reference to one or more of the unusual characteristics of the plant, but may not claim parts or products of the plant.  Grant of a patent for a plant precludes others from reproducing or selling or using the patented plant. A plant patent is regarded as limited to one plant, or genome. A sport or mutant of a patented plant would not be considered to be of the same genotype, would not be covered by the plant patent to the parent plant, and would, itself, be separately patentable, subject to meeting the requirements of patentability. A plant patent expires 20 years from the filing date of the patent application.

Utility Patent under 35 U.S.C. 101 – Utility patent eligible plants can be reproduced either from seeds or asexually. In the genetically modified organism industry, utility patents are sought as a way to protect the specific elements of a plant such as proteins, genes or DNA strands, buds, pollen or fruit.  To be granted a utility patent, the plant must be made by humans and fit within the standard requirements of providing utility, novelty, and be a nonobvious creation.  The rights are the same as any other utility patent.  A plant covered by a utility patent can only be used for crop production and cannot be used for seed saving to resell, give away, or replant.  A farmer that saved seeds from their crops for replanting or sale to others would be infringing on the utility patent.  A utility patent on a plant would last as long as a normal utility patent.

Plant Variety Protection Certificate – This form of protection can be granted by the United States Department of agriculture for plants that are new, distinct, uniform and stable.  No written descriptions are necessary and obviousness is not considered, which makes a Plant Variety Protection Certificate relatively easier to obtain than a either a plant patent or a utility patent.  Many of the same rights are granted by a Plant Variety Protection Certificate but the notable difference is that farmers may save seed from their crops for replanting.  Also there is a compulsory licensing clause that requires protected plants to be sold for a just price.

When choosing how to protect a plant that you have invented it is best to discuss all the available options with a patent attorney to determine the course of action that best achieves your goals.