Provisions and Limitations
Patents to plants that are stable and reproduced by asexual reproduction, and not a potato or other edible tuber-reproduced plant, are provided for by Title 35 United States Code, Section 161, which states:
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 patent therefore, subject to the conditions and requirements of title. (Amended September 3, 1954, 68 Stat. 1190)
The provisions of this title relating to patents for inventions apply to patents for plants, except as otherwise provided.
Plant patents must also satisfy the general requirements of patentability. The subject matter of the application is a plant that you developed or discovered and has been found stable by asexual reproduction.
To be patentable, the following is also required:
◆ The plant was invented or discovered and, if discovered, the discovery was made in a cultivated area.
◆ The plant is not a plant excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part, as with potato or Jerusalem artichoke.
◆ The person or persons filing the application are those who actually invented the claimed plant (that is, they discovered or developed and identified or isolated the plant, and asexually reproduced the plant).
◆ The plant was not sold or released in the United States more than one year prior to the date of the application.
◆ The plant was not shown to the public (by description in a printed publication more than one year before the application for patent with an offer to sale, or by release—even as a gift—or sale of the plant) more than one year prior to application for patent.
◆ The plant is shown to differ from known, related plants by at least one distinguishing characteristic, which is more than a difference caused by growing conditions, fertility levels, and so on.
◆ The invention would not have been obvious to one skilled in the art at the time of invention by applicant.
If you have any doubt about the patentability of a specific plant, consult a qualified legal authority prior to making application, to ensure that the plant satisfies statutory requirements and is not exempted from plant patent protection.
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