Developing an IP Strategy: Plant Patents

September 21, 2011 - 09:07

Intellectual property, which includes plant patents, utility patents, plant breeders rights, trademarks, trade secrets, licensing, copyrights and enforcement, is an important mechanism for horticultural companies to protect their research and breeding programs, and also allows a company to increase their profits from the fruits of their labor. Increasingly, companies are creating intellectual property strategies and incorporating them into their overall business plans. By developing an intellectual property strategy, a company can streamline the process for the introduction of a new plant into the market, while maximizing profitability in the marketplace.

With that premise, we wanted to provide some basic information for the protection of intellectual property in the horticulture industry. This article on U.S. Plant Patents is the first of three articles that will cover different aspects of intellectual property protection in the horticulture industry.

What is a U.S. plant patent?

A U.S. Plant Patent is a property right for asexually propagated varieties, such as most ornamental plants, fruits, trees and vines. A U.S. Plant Patent gives the patent owner the right to exclude others from making, using, offering for sale or selling the protected plant, or any of its parts throughout the United States, in general for up to 20 years from the filing of a patent application.

What are the requirements for a U.S. plant patent?

It is important to remember three basic components for a new plant to be protectable under a U.S. Plant Patent, the new plant must be:

1. Asexually reproducible.

2. Distinct and new (includes cultivated sports, mutants, hybrids, and newly found seedlings), but not tuber propagated plants.

3. Found in a cultivated area (i.e., a new plant found in the wild cannot be patented as found).

Who can file for a U.S. plant patent?

In the United States, any person who invents or discovers and asexually reproduces the new plant, may file for a U.S. Plant Patent. Often, this includes private breeders, academics, breeders in company research programs or individuals who simply find a sport or mutation in their garden.

When do I need to file a U.S. plant patent application?

When developing a strategy for protecting plants, it’s important to remember that under U.S. law, a U.S. Plant Patent application must be filed within one year of the first sale, offer for sale or public availability of the plant. Please note that a variety of acts may constitute a sale, offer for sale or public availability of the plant. Please consult with an attorney if you have any questions concerning what may constitute a sale, offer for sale or public availability of a plant.

What do you need to file a U.S. plant patent application?

Once you have identified a new plant as the subject of a U.S. Plant Patent application and the inventor(s) of the new plant, you will need to gather data on the new plant itself. When filing a plant patent application, the application includes:

1. A detailed botanical description of the new plant.

2. The new plant’s breeding history, the location where the new plant was developed, and identification of the original parental lines (if known).

3. Comparisons of the new plant with both of the parental lines (if available) and with similar varieties that are available to the public.

4. At least one photo of the new plant showing the unique aspects of the new plant.

How long does it take to receive a granted U.S. plant patent?

Generally, it takes between 12 to 18 months to receive a granted U.S. Plant Patent.

How is a protected plant labeled?

Proper marking of your protected plant variety is imperative. “PPAF” is a notation that is used with a pending (i.e., already filed) U.S. Plant Patent application. It should be used on any websites, brochures, labels, containers or any other written materials. After the application has been granted a U.S. Plant Patent, the following notation is used for example, U.S. PP##,###, where “##,###” is the plant patent number given by the United States Patent and Trademark Office.

Looking Forward

It’s hard to believe that the first U.S. Plant Patent was awarded nearly 80 years ago to Henry F. Bosenberg on August 18, 1931, for a Climbing or Trailing Rose. Today, the United States Patent and Trademark Office has issued over 22,000 plant patents.

Protecting new plants is important for companies as the horticulture industry becomes increasingly competitive. The most successful companies are those that develop a comprehensive intellectual property strategy for the protection of their new plant material. By timely identifying new plants for protection, keeping track of potential deadlines, and efficiently gathering information for a U.S. Plant Patent application, a company can quickly develop a strong intellectual property portfolio that will protect its new plants, while also potentially increasing the value of the company.

About The Author

Barbara Campbell and James M. Weatherly are attorneys in the Intellectual Property, Technology & Media Department of Holme Roberts & Owen LLP in Denver, Colo. Campbell and Weatherly have more than 10 years of experience in prosecuting horticultural and biotechnology-based patents, plant patents, United States Plant Variety Protection, plant breeders rights and trademarks in North America, Europe, Africa, South America, Asia and Australia, as well as working on import/export, plant quarantine, seed registration and Federal Seed Act issues. They can be reached at barb.campbell@hro.com and james.weatherly@hro.com, respectively.

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