Intellectual Property Protection for Plants
A variety of options are available
for protecting novel varieties of plants. These options include plant
patents, the Plant Variety Protection Act (PVPA), utility patents and plant
breeders’ rights. Often, more than one form of protection is
available for a single variety of plant.
Plant Patents
A U.S. plant patent is for protecting varieties of
plants that are propagated by asexual reproduction such as rooting
cuttings, runners, tissue culture, grafting and budding, and bulbs.
Plant patents do not provide protection for tuber-propagated plants such as
potato or Jerusalem artichoke. The granting of a plant patent
precludes others from asexually propagating the plant and from using,
offering for sale, selling or importing the reproduced plant.
Recently, plant patent protection has been expanded to protect the plant
parts, as well. The term for a plant patent is 20 years from the date
of filing the plant patent application.
The plant patent application has
numerous requirements, but basically it contains a description of how the
plant was invented or discovered, a botanical description of the plant, a
comparison of the novel plant with other known similar plants and color
drawings or photographs. A properly prepared application with a
complete and thorough botanical description will usually be granted about
1-2 years after the application is filed.
The Plant Variety Protection Act
The Plant Variety Protection Act (PVP)
provides protection for plants that are sexually propagated (by seed) or
tuber-propagated. A Certificate of Protection is granted by the U.S.
Department of Agriculture. The term of protection is 20 years for
most crops and 25 years for trees, shrubs and vines.
The Certificate grants the owner
exclusive rights to multiply and sell the seeds of that variety.
Therefore, others cannot sell, market, offer, deliver, consign, exchange or
expose the variety for sale without permission. Nor can others solicit
an offer to buy the variety, sexually multiply or propagate the variety,
use the variety, produce a hybrid, or condition the variety for the purpose
of propagation.
There are two exemptions for use of
a variety protected by the PVP: the research exemption and the
farmer’s exemption. The research exemption allows others to use
the variety for breeding to develop a new variety. The farmer’s
exemption allows seeds from the protected variety to be saved solely for
the replanting of the farmer’s land. The current farmer’s
exemption is more limited than it was in the past.
An application for PVP protection
requires the following: (1) a name for the variety; (2) proof that the
variety is distinct, uniform and stable; (3) the pedigree, breeding method,
and selection criteria used in developing the variety; (4) the ownership of
the variety; (5) a sample of 2,500 untreated seeds; and (6) the filing fee.
Utility Patents
Utility patents are granted by the
U.S. Patent and Trademark Office for compositions of matter, methods,
articles of manufacture, and machines and improvements thereof.
Utility patents can be obtained to protect novel types of plants such as
genetically modified plants and hybrid plants. Utility patents can
also be obtained for methods of making such modified plants and for novel
methods of making hybrid plants.
A utility patent grants the right to
preclude others from making, using, selling, offering for sale or importing
the patented invention. The term for a utility patent is now 20 years
from the date on which the application is filed.
Plant Breeders’ Rights
Overseas, many countries provide
protection for asexually and sexually reproducing plants via plant
breeders’ rights. Plant breeders’ rights grant an owner
the right to prevent others from selling, marketing, offering, delivering,
consigning, exchanging or exposing the variety for sale without
permission. Nor can others solicit an offer to buy the variety,
sexually multiply it, propagate it, use it to produce a hybrid, or
condition it for the purpose of propagation. Sometimes there are
exceptions to these rights, such as experimental use by others or mandatory
licensing imposed by a foreign government.
The terms of the rights vary from
country to country and depend upon the type of plant. Commonly, the
term is 20 years from grant for most plants and 25 years for trees, shrubs
and vines.
An application for plant
breeder’s rights usually requires: (1) a name for the variety; (2)
proof that the variety is distinct, uniform and stable; (3) the pedigree,
breeding method, and selection criteria used in developing the variety; (4)
the ownership of the variety; (5) a sample of plants or seeds; (6) the
filing fee; and (7) color photographs.
The plants or seeds are required for
testing for 1-2 years in the field to ensure the plant has the described
characteristics. A plant breeder’s right may be granted after
the field trials are completed.
Field trials are conducted once per season, and there is often a
requirement to have the application filed well in advance of the beginning
of the field trial. Late filing of an application will prevent
the plant from being included in a field trial and will delay the granting
of the right.
It usually takes 2-4 years from the
time of application until the right is granted.
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are completed. This announcement contains general information and
is not intended to provide legal advice. Should you require legal
advice, you should seek the assistance of counsel. If we can be of
assistance, please do not hesitate to contact us.
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