Plant Patents

What is a plant patent?

A US plant patent, authorized under 35 U.S.C. §§ 161–164, grants protection for a new and distinct variety of asexually reproduced plant. 'Asexually reproduced' means propagated by means other than seeds — including cuttings, grafting, budding, layering, or division. Plant patents were introduced in the Plant Patent Act of 1930, largely at the urging of horticulturist Luther Burbank (who had developed hundreds of new plant varieties but died in 1926 without patent protection) and his supporters. The most common subjects of plant patents are roses, chrysanthemums, carnations, poinsettias, lilies, orchids, fruit trees, and citrus varieties.

Requirements: new, distinct, asexually reproduced

To qualify for a plant patent, the variety must be: (1) New — not previously known or used in the US; if it was commercially available or publicly known before the application, it may fail the novelty requirement. (2) Distinct — distinguishable from all other known varieties of the same plant species by at least one characteristic. Characteristics can be morphological (flower color, leaf shape, growth habit), physiological (disease resistance, cold hardiness, fruiting season), or both. (3) Asexually reproduced — the variety must be propagated without seeds. (4) Non-naturally occurring — plants discovered in the wild and not cultivated by the inventor cannot be patented; the variety must be the result of the inventor's cultivation efforts. Tuber-propagated plants (potatoes, artichokes) are explicitly excluded.

The single-claim structure

Plant patents are unique in that they contain only a single claim: 'A new and distinct variety of [plant species] plant, substantially as illustrated and described.' Unlike utility patents with multiple specific claims covering different aspects of an invention, a plant patent's single claim covers the entire plant as illustrated and described in the specification. This means the specification itself — the detailed botanical description — defines the scope of protection. The specification must describe all characteristics that distinguish the variety from its closest known varieties, including morphology, growth habits, seasonal behavior, coloring (using a recognized color standard), disease resistance, and any other distinctive features.

Plant patents vs. plant variety protection (PVP)

Plant patents (USPTO) cover asexually reproduced varieties (cuttings, grafting). Plant Variety Protection certificates (USDA/PVPA) cover sexually reproduced varieties (seed-grown) and first-generation hybrids. The two systems serve different horticultural sectors: the cut flower and ornamental plant industry relies heavily on plant patents for roses, chrysanthemums, and the like; the seed industry and grain crop breeders rely on PVP certificates for corn, soybeans, wheat, and vegetables. A PVP certificate lasts 20 years (25 for trees and vines), contains the farmers' privilege exception (allowing farmers to save seed from their own harvest), and a breeders' exemption (allowing other breeders to use the protected variety to develop new varieties). Plant patents have no farmers' privilege exception.

Plant patents vs. utility patents for plants

Utility patents can also be used to protect plants, and since the Supreme Court's Diamond v. Chakrabarty (1980) decision (which held that genetically modified organisms are patentable subject matter), utility patent protection has become the preferred method for protecting genetically engineered crop varieties. A utility patent for a plant variety can have multiple specific claims — covering not just the plant itself but also its method of production, specific genetic traits, the isolated DNA responsible for a desirable characteristic, or specific uses. Utility patents do not have the farmers' privilege or breeders' exemption that PVP certificates carry. However, utility patents have a higher bar — novelty, non-obviousness, and utility — compared to the distinctiveness standard for plant patents.

Botanical drawings and color descriptions

Plant patent applications must include color drawings or photographs showing the plant and its distinctive features. USPTO rules require botanical-quality illustrations that accurately depict the plant's appearance. Color photographs are acceptable and often preferred because they directly capture the plant's exact coloring, form, and texture in a way that drawings may not. Color descriptions in the specification are typically given by reference to a recognized color standard — the Royal Horticultural Society (RHS) Colour Chart is the most commonly used in plant patent practice. For example, rather than describing a rose as 'pink,' a proper plant patent specification might state 'petals are coral pink, RHS Colour Chart Group 40D.'

International plant variety protection: UPOV

The International Union for the Protection of New Varieties of Plants (UPOV, based in Geneva) administers the international framework for plant variety protection. UPOV has 78+ member countries as of 2024. Under UPOV 1991, plant breeders' rights (PBR) cover all plant genera and species propagated either sexually or asexually — broader than the US plant patent system. UPOV 1991 protection lasts 20 years (25 for trees and vines) and includes a breeders' exemption (other breeders can use the protected variety) and an optional farmers' privilege. Most UPOV 1991 member countries have implemented PBR systems administered by national IP offices or agricultural ministries. The US is a UPOV 1991 member; its PVP certificate system under the PVPA implements UPOV for sexually reproduced varieties.

Enforcement of plant patents

Infringement of a plant patent occurs when someone asexually reproduces, sells, or offers for sale the patented variety without authorization. Because plant patents have a single broad claim covering the plant 'substantially as illustrated and described,' infringement analysis focuses on whether the accused plant is substantially the same as the patented variety based on all described characteristics. Plant patent enforcement is most common in the ornamental and cut flower industries, where protected rose and chrysanthemum varieties are frequently the subject of disputes. The American Rose Society and similar trade organizations maintain databases of patented varieties. Growers and nurseries must track which plants are under active patent protection and obtain licenses from the variety owner — typically through royalty arrangements for each propagated cutting.

Frequently Asked Questions