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An IP Garden – Protecting Your New Plant Species

Did you know that you can protect the intellectual property underlying new plant species that you invent?

 There are three different ways to protect the intellectual property associated with plants species that you invent:

 1. a utility patent;

2. a plant patent; or

3. a plant variety certificate. 

 A utility patent can be directed to any new and non-obvious plant or portion of a plant, including, for example, a seed or a flower.

 A plant patent covers a distinct and new variety of asexually reproductive plant other than a tuber propagated plant or a plant found in an uncultivated state.  Asexually propagated plants are plants that are “reproduced by means other than seeds, such as by the rooting of cuttings, by layering, budding, grafting, inarching, etc.” 

 Both the utility and the plant patents extend for a period of twenty years from the earliest filing date to which the patent is entitled.  The period may be adjusted based on US Patent Office delays.

A plant variety certificate covers new, distinct, uniform, and stable sexually reproduced or tuber propagated plant varieties.  The certificate extends for a period of twenty years from the date of issue except that a tuber propagated plant variety subject to a waiver has a term of twenty years after the date of the original grant of the plant breeder’s rights to the variety outside the United States, and a tree or vine has a term of twenty-five years from the date of issue.  The period may be adjusted based on applicant delays.

To learn more about how best to protect your plant-related intellectual property, please contact Jennifer Buss or Walter Steinkraus. 

For a detailed discussion of this topic, please see “Protecting Your Plant I” and “Protecting Your Plant II” authored by Jennifer Buss and Walter Steinkraus. 

This article should not be considered legal advice. Your receipt of this article does not establish an Attorney-Client Relationship. We do, however, invite you to contact us if you would like us to represent you.


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