A plant patent is granted by the United States government to an inventor who has invented and asexually reproduced a distinct, novel variety of plant. The patent grant, which is valid for 20 years after the date of filing, protects the patent owner’s right to exclude others from asexually reproducing the plant, using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any part thereof, into the United States.
The patent can cover a plant under the following meaning: “A living plant organism which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction, but cannot otherwise be made or manufactured.’”
Patents only cover plants that can be asexually reproduced.
While the USPTO does accept utility applications having claims to plants, seed, genes, etc., these items fall beyond the scope of the plant patent.
Obtaining a plant patent for marijuana
Marijuana growers can apply for plant patent applications. These are available for inventors who have discovered a new plant species that can be duplicated through asexual reproduction. As with any patent, the inventor bears the burden of proving that their discovery is not a naturally occurring substance but rather, the invention is new and novel.
One major complication in patenting a marijuana plant revolves around the fact that cannabis is a plant that is often sexually reproduced. Plants that grow this way are ineligible for patenting, as plant patents only cover species that can be asexually reproduced. Therefore, to obtain a plant patent on marijuana, the cannabis grower has to prove that their plant can grow in a laboratory without both the male and female plant.
J.D. Houvener, founder and CEO of Bold Patents, explains further that “an individual has to prove that their plant specimen can be asexually reproduced in a lab setting to get patented. If the seed of the plant is genetically modified in a lab setting, then that plant can be patented. If, however, the seed needs another seed, it cannot be protected under the patent law. This is something that is very difficult to prove.”
Invention for purposes of a plant patent is a two-step process:
Step One: Discovery
This step involves the discovery of a new and novel plant. Discovery could be performed in any cultivated area, and may involve either the identification or recognition of an off type plant of a known variety or the identification of a desirable mutant. It could also result from the identification or recognition of an outstanding individual within the progeny of a cross made in a planned breeding program.
Step Two: Asexual Reproduction
The second step of asexual reproduction tests the stability of the claimed plant to ensure that the plant’s unique characteristics are deliberate and permanent.
After the inventor of a plant discovers the novel plant, and can asexually reproduce the plant and observed the clones so produced for a sufficient amount of time to have concluded that the clones are identical to the parent plant in all characteristics, the inventor is ready to file the patent application.
An inventor or marijuana innovator seeking a plant patent should consult with the USPTO website, and a patent attorney, prior to filing of an application. This consultation will help ensure that the application fulfils all requirements and that the application fees are correct, because filing an application which is not complete may result in the application not being accepted by the USPTO, which could result in the loss of intellectual property rights. Applications which are not formal when filed may also result in loss of rights.
Current filing, search, and examination fees for Plant Patent Applications under the USPTO can be found here.
Carly Klein is a law student at Loyola Law School in Los Angeles. A graduate from Boston University with a B.A. in Political Science & Philosophy, she has previously served an Americorps term at the American Red Cross in Los Angeles on the Service to the Armed Forces & International Services Team.