The law also provides for the granting of a patent to anyone who has
invented or discovered and asexually reproduced 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.
Asexually propagated plants are those that are reproduced by means other
than from seeds, such as by the rooting of cuttings, by layering,
budding, grafting, inarching, etc.
With reference to tuber-propagated plants, for which a plant patent
cannot be obtained, the term “tuber” is used in its narrow horticultural
sense as meaning a short, thickened portion of an underground branch.
Such plants covered by the term “tuber-propagated” are the Irish potato
and the Jerusalem artichoke.
An application for a plant patent consists of the same parts as other
applications with the addition of a plant color coding sheet. The term
of a plant patent shall be 20 years from the date on which the
application for the patent was filed in the United States or, if the
application contains a specific reference to an earlier filed
application under 35 U.S.C. 120, 121 or 365(c), from the date of the
earliest such application was filed.
The application papers for a plant patent and any responsive papers
pursuant to the prosecution must be filed in duplicate but only one need
be signed (in the case of the application papers the original should be
signed); the second copy may be a legible copy of the original. The
reason for providing an original and duplicate file is that the
duplicate file is sent to the Agricultural Research Service, Department
of Agriculture for an advisory report on the plant variety.
The specification should include a complete detailed description of the
plant and the characteristics thereof that distinguish the same over
related known varieties, and its antecedents, expressed in botanical
terms in the general form followed in standard botanical text books or
publications dealing with the varieties of the kind of plant involved
(evergreen tree, dahlia plant, rose plant, apple tree, etc.), rather
than a mere broad non-botanical characterization such as commonly found
in nursery or seed catalogs. The specification should also include the
origin or parentage of the plant variety sought to be patented and must
particularly point out where and in what manner the variety of plant has
been asexually reproduced. Where color is a distinctive feature of the
plant, the color should be positively identified in the specification by
reference to a designated color as given by a recognized color
dictionary. Where the plant variety originated as a newly found
seedling, the specification must fully describe the conditions
(cultivation, environment, etc.) under which the seedling was found
growing to establish that it was not found in an uncultivated state.
A plant patent is granted on the entire plant. It therefore follows that
only one claim is necessary and only one is permitted.
The oath or declaration required of the applicant in addition to the
statements required for other applications must include the statement
that the applicant has asexually reproduced the new plant variety.
Plant patent drawings are not mechanical drawings and should be
artistically and competently executed. The drawing must disclose all the
distinctive characteristics of the plant capable of visual
representation. When color is a distinguishing characteristic of the new
variety, the drawing must be in color. Two duplicate copies of color
drawings must be submitted. All color drawings should be so mounted as
to provide a 2–inch margin at the top for office markings when the
patent is printed.
Specimens of the plant variety, its flower or fruit, should not be
submitted unless specifically called for by the examiner.
The filing fee on each plant application and the issue fee can be found
in the fee schedule. For a qualifying small entity filing and issue fees
are reduced by half.
All inquiries relating to plant patents and pending plant patent
applications should be directed to the Patent and Trademark Office and
not to the Department of Agriculture.
The Plant Variety Protection Act (Public Law 91–577), approved December
24, 1970, provides for a system of protection for sexually reproduced
varieties, for which protection was not previously provided, under the
administration of a Plant Variety Protection Office within the
Department of Agriculture. Requests for information regarding the
protection of sexually reproduced varieties should be addressed to
Commissioner, Plant Variety Protection Office, Agricultural Marketing
Service, National Agricultural Library Bldg., Room 500, 10301 Baltimore
Blvd., Beltsville, Md. 20705–2351.