The world can't function well without plants to not only help the ecosystem, but also to help us look a little greener. While most of us probably buy common house plants, many horticulture entrepreneurs still create new plant species every year. This is something you don't see receive as much attention as tech entrepreneurs do. Nevertheless, it's a creative pursuit needing just as much governmental protection.
As with any creative idea, though, you have a few patent rules to follow. Various stipulations apply to creating a new plant species. Part of this comes through decree of nature, which is already fully protected without worry of Godly litigation.
For a man-made plant, you may need another patent supplement to provide full protection. Even then, it has to fall within statutory patent requirements.
Let's take a look at everything you need to know about plant patents, including a little background information.
When Did Plant Patents Begin?
Some of you may not have realized it was possible to patent a plant in the first place. It's actually been possible for 87 years. The USPTO allowed plant patents starting in 1930, with the first one being filed by Henry Bosenberg. He created a climbing, ever-blooming rose that became popular at the time.
Since then, many, many plants have become patented while following rules from the USPTO on what's allowable.
What is allowed is a plant created through asexual reproduction. This is going to help determine whether the plant's inventor can successfully duplicate their creation.
If this sounds like mad scientist stuff, it's a clear distinction on taking from nature, or creating something not grown directly by seeds.
Being Novel and Distinctive
Those two words above are a major part of patents for just about everything. Inventors of plants need to adhere to this as well because many invented plants are simply offshoots of what already exists.
For instance, you might create a rose variety with distinguishing characteristics from others available in the horticulture market. You have to list exactly what those differences are in your patent description.
It's here where you have some important work to do in outlining to the USPTO exactly what makes your plant unique. Without this, your patent request may get turned down. Plus, you're more vulnerable to another horticulturist taking credit for inventing a plant variation that's similar.
A Plant Already Existing in Nature
You'll be refused a patent if your plant already exists in nature, or produced by seed. The Plant Variety Protection Act applies to these plants only, giving some level of protection if going this route.
Nevertheless, creating a plant is a different process, and the USPTO is going to carefully scrutinize what you're attempting to patent. They'll analyze whether your plant was tuber propagated, meaning propagated by the same part of the plant sold as food. The Irish potato and the Jerusalem artichoke are examples cited by the USPTO's website.
Also keep in mind the word "plant" has acceptance at the USPTO without strict scientific terms. They exclude bacteria from this definition.
Is a Utility Patent Necessary for Plants?
Over the last thirty years, the USPTO has accepted utility patents for plants. In some cases, this applies to plant elements like proteins or DNA as just two well-known examples. You can stretch this out to things like buds, pollen, or plant-based chemicals.
To obtain this utility patent for your plant for more protection, remember the big keywords: Novel and non-obviousness. You may want to deposit seeds or plant tissue in a depository somewhere to prove the characteristics of your plant if you have trouble explaining your plant's value.
Wondering if your idea is patentable? Have a question about this article? We can answer all of your questions — just hit "contact us" down below!