Plant Patents

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.

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