A plant patent is granted to an inventor (or the inventor’s heirs/assigns) who has invented or discovered, and asexually reproduced, a distinct and new plant variety, other than a tuber propagated plant or a plant found in an uncultivated state. A U.S. plant patent lasts for 20 years from the date of filing the application and protects the inventor’s right to exclude others from asexually reproducing, selling, or using the plant so reproduced. This protection is limited to a plant in its ordinary meaning, which includes the following descriptors:
- a living plant organism is one which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction, but which can not otherwise be “made” or “manufactured”;
- spores and mutants (spores or mutants may be spontaneous or induced);
- hybrids (may be natural, from a planned breeding program, or somatic in source);
- transformed plants (although natural plant mutants might have naturally occurred, they must have been discovered in a cultivated area); and
- algae and macro fungi are regarded as plants, but bacteria are not.
The immediately preceding information is limited to patents on asexually reproduced plants. Although the U.S. Patent and Trademark Office accepts utility applications for claims to plants, seed, genes, etc., such practice is beyond the scope of this publication (see, United States Patent Office https://www.uspto.gov/web/offices/pac/plant/#1).