In the United States, possible protection for new plant varieties includes: 

(1)        Plant patents for asexually reproduced plant varieties. 

(2)        Plant Variety Protection (PVP) Certificates for sexually reproduced plant varieties.

(3)        Utility patents for both asexually and sexually reproduced plant varieties.

A U.S. plant patent can be granted to an inventor who has invented or discovered in a cultivated state (not a chance find in the wild) a new and distinctive plant variety (other than a tuber-propagated variety such as a Jerusalem artichoke or Irish potato) and has asexually reproduced the new variety.  In general, a "new and distinct" plant variety has at least one observable characteristic that is different from other known varieties, for example:  habit, rate of growth, immunity from disease, soil condition, color, flavor, productivity, storage qualities, perfume, form, or ease of asexual reproduction. 

A plant patent protects the inventor's right to exclude others from asexually reproducing, selling, or using the patented plant so reproduced.  Among other requirements, a plant patent application requires a detailed botanical description of the new plant and must be filed within statutory time limits.

Plant variety protection in the U.S. under the Plant Variety Protection Act (PVPA) is potentially available to the breeder of any new, distinct, uniform, and stable variety of sexually reproduced or tuber propagated plant (other than fungi or bacteria) who has so reproduced the variety and who has met time limits for filing and other requirements for seeking such protection. 

A variety is "distinct" if it is clearly distinguishable from any other variety the existence of which is publicly known or a matter of common knowledge as of the filing date.  A variety is "uniform" if any variations are describable, predictable and commercially acceptable.  A variety is "stable" if the variety, when reproduced, will remain unchanged with regard to the essential and distinctive characteristics of the variety with a reasonable degree of reliability commensurate with that of varieties of the same category in which the same breeding method is employed.

Utility patent protection can also potentially be obtained for novel plants, seeds, and plant tissue cultures.  Many utility patents have been granted on sexually reproduced plant varieties (although very few have been granted on asexually reproduced varieties, aside from those produced by genetic engineering). 

Attorney contacts for our Plant Patent group: David Petersen or Sheree Rybak.