Can I patent a plant?

Can I Patent a Plant?

Plant innovation represents a unique intersection of agriculture, biotechnology, and intellectual property law. Understanding whether plants can be patented requires examining the specialized protection systems developed specifically for plant innovations.

Plant Protection Systems in the United States

The United States offers three distinct legal frameworks for protecting new plant varieties, each with different requirements and scope:

Utility Patents for Plants

Standard utility patents provide the broadest protection for plant innovations:

• Cover new varieties, plant components, genes, and breeding methods
• Require satisfaction of standard patent criteria: novelty, non-obviousness, and utility
• Provide 20 years of protection from filing date
• Allow claiming of multiple varieties and specific plant characteristics
• Administered by the United States Patent and Trademark Office (USPTO)

In the landmark 2001 case J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., the Supreme Court confirmed that sexually reproducing plants can be protected under standard utility patents.

Plant Patents

The Plant Patent Act of 1930 established a specialized protection system:

• Covers asexually reproduced plants (propagated by cuttings, grafting, etc.)
• Protects against unauthorized asexual reproduction
• Requires the plant to be novel, distinct, and non-obvious
• Provides 20 years of protection from filing date
• Does not cover tuber-propagated plants (like potatoes)
• Administered by the USPTO

Driscoll's, a leading berry producer, has secured numerous plant patents for their strawberry, raspberry, and blueberry varieties.

Plant Variety Protection Certificates

Established by the Plant Variety Protection Act of 1970:

• Covers sexually reproduced, tuber propagated, and F1 hybrid plants
• Protects against unauthorized production, selling, marketing, importing, exporting, or using the variety
• Requires varieties to be new, distinct, uniform, and stable
• Provides 20 years of protection (25 years for trees and vines) from certificate issuance
• Includes important exemptions for research and saving seeds
• Administered by the USDA's Plant Variety Protection Office

Pioneer Hi-Bred International has obtained PVP certificates for numerous corn and soybean varieties.

Comparing Plant Protection Options

Scope of Protection

The three systems offer different protection scopes:

• Utility patents offer the broadest protection, covering plants, parts, genes, and methods
• Plant patents focus specifically on the entire asexually reproduced plant
• PVP certificates protect the variety but include exemptions for research and saved seed

Monsanto (now part of Bayer) strategically uses utility patents to protect both their genetically modified plant varieties and the specific genetic modifications themselves.

Requirements Comparison

Each system imposes different requirements:

• Utility patents have the highest bars for non-obviousness and disclosure requirements
• Plant patents have simplified disclosure requirements recognizing the challenges of botanical description
• PVP certificates focus on distinctness, uniformity, and stability rather than non-obviousness

This variation allows developers to choose the most appropriate protection based on their specific innovation.

Protection Strategy Considerations

When selecting a protection strategy:

• Consider the plant's reproduction method (sexual vs. asexual)
• Evaluate the innovation's nature (whole plant vs. specific traits)
• Assess commercial distribution plans
• Determine enforcement priorities
• Weigh cost considerations

Many commercial plant developers pursue multiple forms of protection for their most valuable varieties.

International Plant Protection

UPOV Convention

The International Union for the Protection of New Varieties of Plants (UPOV) provides an international framework for plant variety protection:

• Over 75 member countries
• Establishes standards for variety protection
• Facilitates protection across multiple nations
• Requires varieties to be new, distinct, uniform, and stable
• Similar to the U.S. PVP system

Syngenta utilizes UPOV-based protection for their seed varieties in numerous international markets.

Patent Protection Internationally

International approaches to plant patentability vary:

• Europe generally excludes plant varieties from patent protection but allows patents on genetic modifications and technical processes
• Canada allows patents on genetically modified plants but not on conventional breeding methods
• China permits both plant patents and plant variety protection
• Brazil excludes natural living beings from patentability but provides plant variety protection

These variations require tailored international protection strategies.

Traditional Knowledge and Farmers' Rights

Some countries have established protections for:

• Traditional plant varieties developed by indigenous communities
• Farmers' rights to save and reuse seeds
• Geographic indications for plants with regional significance

These considerations are especially important in developing countries with significant agricultural traditions.

Special Considerations for Plant Patenting

Genetically Modified Plants

Plants modified through genetic engineering present unique considerations:

• Often protected through utility patents
• May include claims on specific genetic constructs
• Can include methods of producing the modified plants
• May face additional regulatory requirements
• Often employ technology use agreements to supplement patent protection

Corteva Agriscience has developed comprehensive protection strategies for their genetically modified crop varieties.

Naturally Occurring Plants

Naturally occurring plants face specific limitations:

• Plants discovered in nature generally cannot be patented without human intervention
• The Association for Molecular Pathology v. Myriad Genetics, Inc. Supreme Court decision reinforced that naturally occurring materials are not patent-eligible
• Some level of human intervention or modification is required for patentability

This principle applies across all three plant protection systems.

Microorganisms and Algae

Single-celled organisms related to plants have distinct considerations:

• Microorganisms can be patented under utility patents following Diamond v. Chakrabarty
• Algae may qualify for various protections depending on their nature and use
• Specific strains often qualify for utility patent protection when they meet patentability criteria

Solazyme (now TerraVia) obtained numerous patents on modified algae strains for biofuel and food production.

Questions about Plant Patents

What's the Difference Between a Plant Patent, Utility Patent, and Plant Variety Protection Certificate?

The three plant protection systems differ fundamentally in scope, requirements, and coverage. Plant patents, created specifically for asexually reproduced plants (those propagated through cuttings, grafting, budding, etc.), protect against unauthorized asexual reproduction of the entire plant. They require relatively simple botanical descriptions, photos, and proof of asexual reproducibility, with examination focusing on distinctness rather than complex utility assessments. Utility patents provide broader protection covering the plant itself, its parts (seeds, fruit, genes), and methods of producing it. They require more rigorous examination, detailed enablement descriptions, and satisfaction of stricter novelty and non-obviousness standards, but they offer the most comprehensive protection—potentially even covering harvested materials and subsequent generations. Plant Variety Protection certificates, administered by the USDA rather than USPTO, specifically protect sexually reproduced varieties (grown from seed) and offer important exemptions: researchers can use protected varieties to develop new varieties, and farmers can save seeds for personal replanting (though not for sale). Each system serves different innovation types—utility patents work best for breakthrough technologies like genetic modifications, plant patents for ornamentals and fruits reproduced through grafting, and PVP certificates for seed-propagated crops. Commercial plant developers often use multiple protections simultaneously, securing both utility patents and PVP certificates for valuable crop varieties to create layered protection against different types of unauthorized use.

How Do I Determine Which Protection Is Best for My New Plant Variety?

Selecting the optimal protection for your plant variety requires evaluating several key factors. First, consider your plant's reproduction method—asexually propagated varieties (reproduced through cuttings, grafting, etc.) qualify for plant patents, while sexually reproduced varieties (grown from seed) need either utility patents or Plant Variety Protection certificates. Second, assess what aspects need protection—if you've developed a unique ornamental appearance or specific trait, a plant patent might suffice; for broader protection covering methods, genes, and plant parts, pursue utility patents. Third, evaluate your commercialization strategy—if licensing to other breeders is important, PVP certificates allow collection of royalties while permitting breeding research; if you want to prevent all unauthorized use, utility patents provide stronger exclusivity. Fourth, consider enforcement capabilities—utility patents typically offer stronger litigation positions but cost more to obtain and enforce. Fifth, analyze your international markets—if global protection is essential, PVP certificates often provide the most streamlined international pathway through UPOV member countries. Finally, evaluate budget constraints—utility patents ($10,000-$30,000) cost significantly more than plant patents ($5,000-$7,000) or PVP certificates ($5,150). Many commercial plant developers employ tiered strategies: securing utility patents for breakthrough varieties with significant commercial potential, plant patents for distinctive ornamentals, and PVP certificates for more conventional varieties or as complementary protection to utility patents.

What Documentation Do I Need to Successfully Patent My Plant Innovation?

The documentation required for plant protection varies significantly between systems, but comprehensive records are essential for all pathways. For plant patents (asexually reproduced plants), prepare detailed botanical descriptions including distinguishing characteristics, high-quality color photographs showing distinctive features from multiple angles, and clear documentation of the asexual reproduction method. Include evidence of stable reproduction showing the variety maintains its distinctive characteristics through propagation cycles. For utility patents, more extensive documentation is required: detailed genetic information when applicable, precise breeding histories or development methods, comparative data showing improvements over existing varieties, and comprehensive enablement information allowing others to make and use the invention. Document any unexpected or superior characteristics with quantitative data. For Plant Variety Protection certificates, prepare complete morphological descriptions using UPOV descriptors, representative seed samples for deposit, breeding history showing parentage, and evidence demonstrating the variety's distinctness, uniformity, and stability through multiple generations. For all protection types, maintain meticulous development records including: dated notebook entries documenting the innovation process, witness signatures verifying key developments, photographs documenting the variety's evolution, and testing data across different environments to demonstrate stability. These records prove critical not only during application but in potential enforcement actions where the innovation's origin and distinctiveness may be challenged.

How Do Plant Breeder Exemptions and Research Exemptions Affect My Protection?

Plant breeder exemptions and research exemptions significantly impact the scope and value of plant-related intellectual property, creating important distinctions between protection systems. Plant Variety Protection certificates include a statutory breeder's exemption allowing others to use your protected variety to develop new, distinct varieties without permission or payment—this promotes innovation while potentially allowing competitors to build on your work. PVP certificates also include a farmer's exemption permitting growers to save seeds for replanting on their own farms (though not for sale to others). Neither of these significant exemptions exists with utility patents, which prohibit unauthorized use of the patented plant for any purpose, including breeding new varieties or saving seeds. Plant patents fall between these extremes—while they don't have explicit exemptions, their scope covers only asexual reproduction, potentially allowing research using sexual reproduction methods. For commercial plant developers, these exemptions drive strategic decisions—companies developing foundational varieties often prefer utility patents precisely because they lack these exemptions, while public breeding programs and companies focused on incremental improvements may prefer PVP protection that allows participation in the broader innovation ecosystem. Some jurisdictions, particularly in Europe and under international treaties like ITPGRFA, have more extensive exemptions focusing on food security and agricultural sustainability. When developing your protection strategy, carefully evaluate how these exemptions align with your commercialization goals, licensing intentions, and market position.

How Does International Plant Protection Work?

International plant protection requires navigating a complex patchwork of country-specific systems with important variations in scope and requirements. The International Union for the Protection of New Varieties of Plants (UPOV) provides the most harmonized approach, with over 75 member countries offering standardized plant variety protection similar to the U.S. PVP system. Filing through UPOV member countries allows streamlined protection for sexually reproduced varieties, though each country maintains its own examination and enforcement mechanisms. For asexually reproduced plants, international protection becomes more challenging—few countries have specialized plant patent systems like the U.S., requiring utility patent filings or adaptation to local variety protection systems. Utility patent protection for plants varies dramatically internationally—the European Patent Convention explicitly excludes plant varieties (though allowing patents on genetic modifications and technical processes), while countries like Australia offer broader protection similar to the U.S. When developing an international strategy, consider filing directly in major commercial markets using country-specific systems, supplemented by regional systems like the Community Plant Variety Office (CPVO) in Europe. Timing is critical—most countries require variety applications before commercial sale anywhere in the world. International protection costs accumulate quickly, often necessitating prioritization based on market importance, production locations, and enforcement feasibility. Many companies focus protection on propagation sources rather than attempting comprehensive global coverage. For developing-world markets, be aware of various Farmers' Rights provisions and Traditional Knowledge protections that may limit enforcement or require benefit-sharing arrangements when using locally developed germplasm.