Chapter 1600: Plant Patents
This chapter provides an overview of plant patents. Note that these patents will only be granted for certain plants. One of the major criteria for a plant patent is that the plant must reproduce asexually. Asexual plants are reproduced by making a cutting, layering, grafting, or inarching. In addition, claims for plant patents will not be granted for a new variety of fruit or flower, only for a new and distinct variety of plant.
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This section provides an introduction to plant patents. Essentially, whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids and newly found seedlings (other than a tuber propagated plant or a plant found in an uncultivated state) may obtain a plant patent. Further details on the types of plants that are patentable are covered.
An application for a plant patent consists of the same parts as other applications. Only one copy of the specification is necessary (in the past, the PTO required two). If the drawings or photographs are in color, two copies of the drawings or photographs are required.
This section covers the specification and claims involved in plant patents. It references the related rules and statutes.
This section references 37 C.F.R. 1.165 Plant drawings.
Specimens need not be submitted unless the examiner requests them.
Plant applications are subject to the same examination process as any other national application. As such, the statutory provisions with regard to patentable subject matter, utility, novelty, obviousness, disclosure, and claim specificity requirements apply.
The language of the claim must refer to a “new and distinct variety of plant”. Absolutely no claim should be directed toward a new variety of flower or fruit. The specification should not include statements with laudatory expressions (prettier roses, etc.) or statements referring to the character and quality of the products made from the fruit.
The preparation of a plant patent application for issue involves the same procedure as for other applications, with the exception that where there are color drawings, the better one of the two judged, for example, by its sharpness or cleanliness is selected to be printed in the patent. All plant patent applications should contain an abstract when allowed.
In many countries, new plant varieties are protected by breeders’ rights laws rather than patent laws. The UPOV Convention attempts to make the process of gaining Intellectual Property rights on plants uniform across the member countries.
An application for a plant patent may rely upon an application for plant breeder’s rights filed in a WTO member country (or in a foreign UPOV Contracting Party) for priority under 35 U.S.C. 119(a) through (c).
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