A plant patent is the patent granted for the invention or discovery or asexual reproduction of a different and new variety of plant other than a tuber propagated plant or a plant seen in an uncultivated state. The grant is extended to a period of 20 years from the filing date of the application.
The plant patent saves the inventor's right to prevent others from asexually reproducing, selling, or using the plant so reproduced. This protection is restricted to a plant in its ordinary sense and do not include bacteria or anything that can be made or manufactured. To be patentable, the plant should not have been released to the public in any manner, one year prior to the application date. The plant should have at least one distinguishing characteristic to prove that it is different from known, related plants and that should not be mere difference caused by growing conditions or fertility levels. There may be plurality of inventors to claim plant patent as it involves two steps namely the discovery and asexual reproduction of plants. If the same person discovers and asexually reproduces a new and distinct plant then that person would be the sole inventor. If one person discovered and another asexually reproduced the plant the second person would be considered a co-inventor. A plant patent is restricted to one plant, or genome. A mutant of a patented plant would be separately patentable on fulfillment of the patentability requirements.
A patent application for a plant is subject to the same requirements as that of a utility application with certain exceptions. An application for plant patent shall state
An application should be filed only after the completion of invention to avoid rejection of the claim on the ground of prematurity. The clones produced by way of asexual reproduction must have been observed by the inventor for a sufficient period of time to reach a conclusion that the clones are identical in the entire characteristics of the parent plant. The applicants of plant patent should affirm that they have discovered the plant in a cultivated area or that they have asexually reproduced the plant, as suitable to the condition. This is in addition to the averments required for a utility application.
The application is forwarded for examination once it is found in conformity with formal requirements. Completeness of botanical description, novelty and obviousness of the claimed plant, etc are assessed during the examination. After the examination, if the application is found as formal, complete and related to a plant which was both novel and unobvious, a notice of allowance will be sent to the applicant. The patent will be granted upon payment of the issue fee by the applicant.
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