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Can Plants Be Patented?

Plant Patent

Plant patents are offered by the United States Patent and Trademark Office (USPTO) to those individuals or entities which have invented, discovered or asexually reproduced (produced by means other than from seeds, such as rooting or layering) a new and distinctive type of plant.

These types of plants can include cultivated sports, mutants, hybrids, and discovered seedlings and must be different from a tuber propagated plant or a plant that has been uncultivated for some time. This patent is outlined under Title 35, Part II, Chapter 15, § 161 of United States intellectual property law. Under § 162 of the same statute, a plant patent may not be judged to be invalid for not complying with section 112 of Title 35, which details guidelines for describing a patent in the submission process, as long as the description of the plant patent is as complete as possible. The claim should be consistent with the plant that is shown and described within the plant patent application.

Plant Patent Terms:

Following the approval of the plant patent application by a USPTO examiner, the applicant is granted exclusive rights to the plant for twenty years from the date in which the application was filed. The patent holder is given the right to exclude others from asexually reproducing the plant on their own without consent. No one else may use, offer for sale, or sell the plant or parts of the plant under any circumstances throughout the United States. Also, the patented plant or its parts are prohibited from being imported from another country into the United States.

Plant Patent Application:

A plant patent application is similar to utility and design applications, though it has the addition of a plant color coding sheet. The plant patent application and other documents that must accompany it should be doubled into two copies, with only one requiring a signature.

The unsigned duplicate copy is sent to the Agricultural Research Service at the Department of Agriculture to examine the plant variety. The description of the plant within the application should be detailed and follow standard terms of botanical text books and other related publications pertaining to plant varieties. The manner in which the plant was created should also be described in detail, including conditions of the environment, etc.

Also, if the plant has a flower or fruit, a specimen should be submitted to the USPTO for examination if it was requested by the examiner. A plant patent drawings should not be styled mechanically, but rather, artistically done and skillfully executed.

The drawing should have a purpose of detailing the distinct visual characteristics of the plant. If the new plant has a distinct color, the drawing must represent the plant in color.

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