Branching Out-What is a Plant Patent?

I love plants. We eat them, hike through them, decorate with them, and sometimes talk to them. I personally don’t talk to my plants but some do and that’s ok. Mother Nature is not a patent holder but if she were, she would probably need to apply to patents her entire life. Or the United States Patent and Trademark Office would grant them to her liberally. “Oh, you’re Mother Nature” they would say. “All of the plant patents are yours-no questions asked.”

Many have heard of a utility patent which is more common and primarily protects the functional aspects of an invention and offers a broad protection of different variations of one product. However, unlike a design patent, it does not protect the ornamental features of the invention. Design patents are more about the appearance of the product. The protection does not protect the functional features and it is not as broad utility protection. For example, different variations cannot be protected as easily.

But have you heard about of a “plant patent?” Hopefully, this blog plants seeds of knowledge, rooted in some common sense information, “leafing” you with some sort of growth.

Straight from the horse’s mouth or plant’s mouth, the USPTO describes a plant patent as the following:

“A plant patent is granted by the Government to an inventor (or the inventor’s heirs or assigns) who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. The grant, which lasts for 20 years from the date of filing the application, protects the inventor’s right to exclude others from asexually reproducing, selling, or using the plant so reproduced. This protection is limited to a plant in its ordinary meaning:

  • A living plant organism which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction, but which can not otherwise be “made” or “manufactured.”
  • Sports, mutants, hybrids, and transformed plants are comprehended; sports or mutants may be spontaneous or induced. Hybrids may be natural, from a planned breeding program, or somatic in source. While natural plant mutants might have naturally occurred, they must have been discovered in a cultivated area.http://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/general-information-about-35-usc-161 “A new rose variety of the hybrid tea class distinctive in its character by being near thornless and by having blooms which open with the outer petals being a cream color and the center petals yellow orange as hereafter shown and described. This rose is novel and distinctive from previous rose plants in the following ways: (1) near thornlessness (i.e., only a few thorns appear on some bushes); (2) an attractive full foliaged spreading plant; and (3) a medium to large, tight centered, full, symmetrical, two toned cream and yellow orange bloom. Asexual reproduction of the Smooth Angel was performed in California and was continued through succeeding propagations.”There are some additional, extremely fun plant articles that I suggest you read. The first one taught me that there are approximately 7,500 apple varieties. However, our grocery stores only have 5-10. How could they?!?Like something out of a Tim Burton movie, a Syracuse University Art Professor found a way to grow a tree that bears 40 types of fruit. I live in an urban apartment, but I want one!At Mohr IP Law, we are always helping clients plant the seeds of success. Our attorneys have intellectual property green thumbs and can properly plant your patent applications (for plants or other items) into USPTO soil.

 

http://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/general-information-about-35-usc-161

The first plant patent was issued to Henry Bosenberg in 1931 for his climbing, ever-blooming rose. The USPTO decided in 1930 that they would grant plant patents to inventors (besides Mother Earth) who first appreciate the distinctive qualities of a plant and reproduces it asexually. http://www.nolo.com/legal-encyclopedia/plant-patents.html

“Asexual reproduction means that the plant is reproduced by means other than seeds, usually accomplished by cutting or grafting of the plant. Asexual reproduction is the cornerstone of plant patents because that is what proves that the inventor (or discoverer) can duplicate the plant. The patented plant also must be novel and distinctive. For example, consider the Smooth Angel rose plant, patented by Henry Davidson of Orinda, California. It is described as follows in its patent.

“A new rose variety of the hybrid tea class distinctive in its character by being near thornless and by having blooms which open with the outer petals being a cream color and the center petals yellow orange as hereafter shown and described. This rose is novel and distinctive from previous rose plants in the following ways: (1) near thornlessness (i.e., only a few thorns appear on some bushes); (2) an attractive full foliaged spreading plant; and (3) a medium to large, tight centered, full, symmetrical, two toned cream and yellow orange bloom. Asexual reproduction of the Smooth Angel was performed in California and was continued through succeeding propagations.”

Michael Scott from the Office would have had a field day with the verbiage from the USPTO about plan reproduction. To read this entire article click on: http://www.nolo.com/legal-encyclopedia/plant-patents.html

There are some additional, extremely fun plant articles that I suggest you read. The first one taught me that there are approximately 7,500 apple varieties. However, our grocery stores only have 5-10. How could they?!?

http://m.motherjones.com/environment/2013/04/heritage-apples-john-bunker-maine

Like something out of a Tim Burton movie, a Syracuse University Art Professor found a way to grow a tree that bears 40 types of fruit. I live in an urban apartment, but I want one!

http://www.cnn.com/2015/08/03/living/tree-40-fruit-sam-van-aken-feat/

At Mohr IP Law, we are always helping clients plant the seeds of success. Our attorneys have intellectual property green thumbs and can properly plant your patent applications (for plants or other items) into USPTO soil.

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One Response to Branching Out-What is a Plant Patent?

  1. Pingback: For Love of Roses | Mohr IP Law

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