Patentability of Plants and Plant Parts

Image: Roses, Convolvulus, Poppies and Other Flowers in an Urn on a Stone Ledge. 1688.
Rachel Ruysch (1664 – 1750).

Plants are not typically eligible for intellectual property protection via patents. In other words, there is nothing novel, unique, or innovative about a naturally existing organism such as a plant that is not distinctively man-made. However, there are legal exceptions with regard to patentability of plants. According to 35 U.S.C. 101, “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 therefor, subject to the conditions and requirements of this title.” Amended Sept. 3, 1954, 68 Stat. 1190. In the United States, plants may be patented (for 20 years from the date of filing) or be eligible for a Plant Variety Protection Act certificate as per 7 U.S.C. § 2321, et seq. United States code details the types of plants and plant parts that can be patented. Thus, in order for plants to qualify for patent protection, plants must have been modified in a manner that is novel. J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’ l, Inc., 534 U.S. 124, 143-46 (2001). A plant currently existing in nature would not classify as a novel creation.  A plant patent must also be substantially non-obvious. Yoder Bros., Inc. v. California-Florida Plant Corp., 537 F.2d 1347 (5th Cir. 1976), cert. denied, 429 U.S. 1094 (1977). A person having ordinary skill in the art (PHOSITA – an expert in the field) of the plant invention would need to determine that the novel plant creation possesses some type of inventive step. A plant patent must also be useful, distinctive, and capable of asexual reproduction. 35 U.S.C. 161. Finally, the modified plant must also possess an adequate written description for a plant patent. 35 U.S.C. 101, 112. A plant patent owner may exclude others from using, selling, or importing a plant for means of asexual reproduction.


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