Making Application
An application for a plant patent consists of the same parts as other applications, with the addition of a plant color-coding sheet. As with the utility patent, the term of a plant patent is 20 years from the date the application was filed in the United States, or from the date the earliest such application was filed if the application contains a specific reference to an earlier filed application under 35 U.S.C. 120, 121, or 365(c).
The Application
Your application for a plant patent and any responsive papers pursuant to the prosecution duplicate copies are no longer required. The original should be signed.
Specification
The specification should include a complete detailed description of the plant and the characteristics that distinguish it over related known varieties. It should also include its antecedents, expressed in botanical terms in the general form followed in standard botanical textbooks or publications dealing with the varieties of the kind of plant involved (evergreen tree, dahlia plant, rose plant, apple tree, and so forth) instead of a mere broad nonbotanical characterization, as is commonly found in nursery or seed catalogs.
Notable Quotables
All mankind is divided into three classes: those who are immovable, those who are moveable, and those who move.
—Benjamin Franklin
Here are some of the factors you must ascertain for a reasonably complete botanical description for the claimed plant:
◆ Genus and species
◆ Habit of growth
◆ Cultivar name
◆ Vigor
◆ Productivity
◆ Precocity (if applicable)
◆ Botanical characteristics of plant structures (buds, bark, foliage, flowers, fruit, and so on)
◆ Fertility (fecundity)
◆ Other characteristics that distinguish the plant, such as resistance(s) to disease, drought, cold, dampness, fragrance, coloration, regularity and time of bearing, quantity or quality of extracts, rooting ability, timing or duration of flowering season, etc.
The amount of detail required in a plant patent application is determined on a case-by-case basis and by the similarity of the prior art plants to the plant being claimed. The examiner will evaluate the completeness of the application. The examiner’s judgment may be tempered by the level of activity in a specific market class. The botanical description of a plant in a market class with a high level of commercial activity may require greater detail, substance, and specificity than that for a plant in a market class of little activity.
Fast Facts
If a plant label has a patent number written on it, you need permission to propagate it even for your own use. Most hybridizers will give you permission to propagate a rose for your own use, but not for profit. Asexual propagation without the written permission of the patent holder is against federal patent laws.
Here’s how to frame your specification for submission to the USPTO:
◆ Title of the Invention. The title of the invention must include the name of the claimed plant.
◆ Cross-Reference to Related Applications (if any). Related applications include …
1. A utility application from which the claimed plant is the subject of a divisional application.
2. A continuation (co-pending, newly filed application) or CPA to the same plant filed when a parent application has not been allowed to a sibling cultivar.
3. An application not co-pending with an original application that was not allowed.
4. Co-pending applications to siblings or similar plants developed by the same breeding program, and so forth.
The Claim
A plant patent is granted on the entire plant. It follows, therefore, that only one claim is necessary and only one is permitted.
The Oath: I Do Solemnly Swear …
Together with the required oath or declaration, you must include a statement that you (and your co-inventors, if any) have asexually reproduced the new plant variety. If the plant is a newly found plant, the oath or declaration must also state that the plant was found in a cultivated area.
Drawings
While you are permitted to submit watercolor drawings, the USPTO basically gets photographs from everyone these days. So if you go that route, send them in duplicate, not mounted on chipboard or any other subsurface. They should be printed on a full-size piece of paper. The sizes required are 8½×11 or A4 (European size).
Specimens—Send Me No Flowers
Specimens of the plant variety, its flower, or its fruit should not be submitted unless specifically called for by the examiner.
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The Plant Variety Protection Act (Public Law 91577), passed December 24, 1970, provides for a system of protection for sexually reproduced varieties, for which protection was not previously provided, under the administration of a Plant Variety Protection Office within the Department of Agriculture. If you have any questions about the protection of sexually reproduced varieties, address them to Commissioner, Plant Variety Protection Office, Agricultural Marketing Service, National Agricultural Library Building, Room 0, 10301 Baltimore Boulevard, Beltsville, MD 20705-2351.
Cost: Green Fees
Fees change annually, so be sure to call the USPTO (1-800-786-9199 or 571-272- 1000) or visit the USPTO website (www.uspto.gov) and double-check the prices before taking any action.
If you qualify as a small entity, the USPTO reduces the filing and issue fees by half.
If you have any questions relating to plant patents and pending plant patent applications, contact the Patent and Trademark Office.
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