Plant patents are covered under 35 U.S.C. 161 and include any distinct and new variety of plant that reproduces asexually. These include cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant or a plant found in an uncultivated state. Plants capable of sexual reproduction are not excluded from consideration if they have also been asexually reproduced. The term of a plant patent is 20 years from the earliest filing date.
Elements of a plant patent application
The elements of the plant patent application, if applicable, should appear in the following order (37 CFR 1.154):
- Plant application transmittal form
- Fee transmittal form
- Application data sheet
- Specification
- Drawings, in duplicate
- Executed oath or declaration
The Specification should include, in order:
- Title of the invention,
- Cross-reference to related applications,
- Statement regarding federal funding
- Latin name of the genus and species of the plant claimed
- Variety denomination
- Background of the invention
- Brief summary of the invention
- Brief description of drawings
- Detailed botanical description
- A single claim
- Abstract of the disclosure
Examination of a Plant Patent application
Plant patent applications are subject to the same examination process as any other U.S. application. All plant patent applications need to satisfy the requirements with respect to patentable subject matter, utility, novelty, unobviousness, disclosure, and claim specificity requirements. The claim in a plant patent application must be directed to the "new and distinct variety of plant." The examiner conducts a prior art search before issuing an Action. Sometimes, a report may be obtained from the Agricultural Research Service, Horticultural Research Branch, Department of Agriculture verifying as to whether the plant variety discovered is new and distinct over known plant varieties.
