|
|
Plant Protection
The type of intellectual property protection available for
a plant in the United States depends on the nature of the
plant.
- A U.S. plant patent protects a new plant
variety, other than a tuber propagated plant, that has been
invented or discovered in a cultivated area, and stably
reproduced by the inventor/discoverer by asexual means,
such as by grafting, division, etc. The application for
a U.S. plant patent is examined by the U.S. Patent and Trademark
Office, which is an arm of the Department of Commerce, applying
U.S. patent laws, including the provisions in U.S. patent
laws that are specific to plant patents.
- A U.S. Certificate of Plant Variety Protection
protects plant varieties reproduced by sexual propagation
(i.e., seeds), tubers, and F1 hybrids. The application for
a Certificate of Plant Variety Protection differs in format
from a patent application because forms and questionnaires
specific to the plant variety must be completed. The application
is examined by the Plant Variety Protection Office, an arm
of the U.S. Department of Agriculture, applying the criteria
set forth in the law of plant variety protection. The initial
application fee ($4,382 for application and examination)
paid to the Plant Variety Protection Office (PVPO) is significantly
higher than the initial fee paid to the Patent and Trademark
Office for a patent application having no more than 20 claims.
However, the only other required fee downstream in the examination
of an application by the PVPO is $768 for issuance of the
certificate of plant variety protection, whereas a number
of additional fees are usually incurred downstream for a
patent application, and the fee for issuance of the patent
is higher than for a PVPO certificate.
- In relatively fewer cases, a plant variety, whether reproduced
asexually or by seeds, may be protected by a U.S. “utility”
patent (i.e., a patent that is neither a plant patent, nor
a design patent). Such a utility patent application is examined
by the U.S. Patent and Trademark Office, applying U.S. patent
laws other than the provisions that are specific to plant
patents. The examination tends to result in rejection of
the application so that few utility patents are issued for
plant varieties (only about 1,800 issued to date). Until
recently, an unresolved issue was whether the U.S. Congress
intended to make utility patents available for plant varieties.
This was resolved by a 2001 decision of the U.S. Supreme
Court confirming that plant varieties may be protected by
utility patents.
|
|
