What Is a Plant Patent?
Federal patent law affords protection to inventions and discoveries that are useful, novel in relation to prior art in the field, or nonobvious to a person of ordinary skill in that field. To secure patent protection, an invention or discovery is typically classified as a utility, design or plant. Plant patents have been recognized since the federal Plant Patent Act of 1930 was enacted.
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Requirements for Plant Patent
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There are four requirements for plant patents: The new variety must be asexually reproduced; the plant must be distinctive; the plant must be novel; the plant must be nonobvious. Plants that are tuber-propagated or that are uncultivated (for example, found growing wild) are not considered patentable.
Asexual Reproduction
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Asexual production of a plant includes methods of propagation other than by seed. The rooting of plant cuttings, layering, budding and grafting are examples of forms of asexual reproduction.
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Term of Protection of Plant Patent
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Plant patents are afforded the same length of protection as other patents: 20 years from the date the initial application is filed with the United States Trademark and Patent Office (USPTO).
The Initial Plant Application
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While other patent applications permit more than one claim, an application for a plant patent mandates the use of only one claim to embody the characteristics of the plant in its entirety. Two copies of the application are required upon submission to the USPTO. One is filed with the USPTO, and the other is forwarded to the Department of Agriculture for review.
Waiver of Maintenance Fees
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Maintenance fees are required at 3.5-, 7.5- and 11.5-year intervals for continued utility patent protection. However, plant patents, as well as design patents, require no maintenance fees.
The Plant Variety Protection Act
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The Plant Variety Protection Act authorizes patent protection for certain sexually-reproduced plants through the award of a certificate issued by the Department of Agriculture. A certificate holder can exclude others from selling or offering, reproducing or trading plants that may infringe on an existing patent.
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