Plant Patents: How to Protect Your IP When Creating or Discovering New Plants
In general, when we think of patented inventions, we think of new and useful systems, machines, or compositions of matter. However, in the United States, there are three types of patents. Utility patents cover those new and useful machines and systems we typically think of, but there is also patent protection available for novel designs and new plants. Plant patents can be available to those who produce new and distinct varieties of plants.
Plant patents are subject to the same requirements as any other applications for patents with the exception of the written description, which for plant patents need only be "as complete as is reasonably possible." (It is important to note that new and useful plants may be covered by a utility patent provided the disclosure can meet the higher written description requirements for utility patents.) The Plant Patent Act was added to the patent statute in 1930, allowing those who invent or discover and asexually reproduce a new variety of plant to obtain patent coverage for that invention. The terms "invents or discovers" were added to ensure that patents were only awarded for plants that were created as a result of plant breeding or other agricultural and horticultural efforts and that were created by the inventor.
The requirement that a novel plant be "asexually reproduced" has been interpreted by the United States Patent and Trademark Office (USPTO) to include those plants that are reproduced by means other than from seeds, such as by rooting of cuttings, by layering, budding, grafting, inarching, et cetera. Plants capable of sexual reproduction are not excluded from patent coverage as long as they have also been asexually reproduced. The patent statute specifically excludes tuber propagated plant or a plant found in an uncultivated state, which applies very specifically to the Irish potato and Jerusalem artichoke, because they are propagated by the same part of the plant that is sold as food.
While the Plant Patent Act relaxed the written description requirement for plant patent applications, there are still some specific requirements that must be met when applying for plant patent coverage. Namely, the written description must include the Latin name of the genus and species of the plant, a variety denomination, a drawing or photos, and a detailed botanical description, along with the background and brief summary that are also required in utility patents. A single claim is required for the plant patent application as well that describes in formal terms the new and distinct variant of the specified plant and may also recite the principle distinguishing characteristics. More than one claim is not permitted.
Similar to utility and design patents, grant of a plant patent includes the right to exclude others from making, selling or importing the patented plant, but also includes a right to exclude others from asexually reproducing the plant and from using, offering for sale, or selling the plant so reproduced.
There are currently over thirty-five issued plant patents for different varieties of Cannabis species. Most of these are directed to Cannabis sativa, or hybrids of Cannabis sativa and Cannabis indica. These distinct varieties are distinguished in the patents by their morphology, growth and flowering periods, microbial and/or pest resistance, aroma and flavor, levels of cannabinoids and terpenes, environmental stress tolerance, and visual appearance. In particular, the industry seems to favor varieties that produce higher concentrations of cannabinoids and terpenes, which increases the plants' medicinal values, as well as those varieties that display increased resistance to microbes and pests, which allows them to be propagated with reduced amounts of chemical additives.
If you think you have developed and reproduced a novel plant variety, you can take steps to protect your intellectual property rights.