Protect Your Plant Creations: Discover the Process and Guidelines for Applying for Plant Patents

Have you ever thought about protecting your plant creations legally? In Washington, D.C., where cool ideas and nature collide, the idea of getting a patent for your plants is pretty important. So, can your plant innovations get legal protection? Let’s check out the process and guidelines for applying for plant patents and see how you can take your gardening wonders to the next level.

Now that we’re delving into the world of plant patents, let’s break it down. A plant patent is like a superhero cape for your unique plants, granting them special protection. This means your botanical marvels can have their own legal shield against imitators. But what does it really entail? A plant patent is a kind of legal certificate that says, “Hey, this plant is special, and only the person who discovered or created it gets to decide how it’s used.” So, how do you get this superhero status for your plants? Let’s unfold the story.

Short Summary

  • Plant Patent Definition
    • A plant patent is a form of intellectual property protection for newly developed and distinct plant varieties reproduced asexually.
    • Exclusive rights are granted to the inventor, controlling propagation, sale, and utilization for a limited duration.
  • Determining Plant Patent Inventorship
    • If a service handles asexual reproduction, those individuals aren’t considered co-inventors.
    • The inventor’s role is crucial in discovering or asexually reproducing a plant.
  • Limitations on Patenting Plants
    • Wild plants can’t be patented, but cultivated discoveries are eligible.
    • Tuber plants, like potatoes, are excluded from plant patentability.
  • Qualifying for Plant Patents
    • Criteria include novelty, uniqueness, non-obviousness, distinctiveness, asexual reproduction, and cultivation.
    • Patents cover intentional human actions, excluding naturally occurring plants.
  • Validity and Duration of Plant Patents
    • Valid for 20 years from filing, granting exclusive rights to sell, use, and reproduce the plant.
    • Distinguished from utility patents, which cover inventions and discoveries.
  • Applying for Plant Patents: Process and Guidelines
    • Verify USPTO requirements and fees before application initiation.
    • Incomplete applications risk rejection and loss of intellectual property rights.
  • Application Preparation Steps
    • Discovery and asexual reproduction, stability verification, and oath or declaration filing.
    • Thorough documentation, botanical descriptions, drawing preparation, and application assembly.
    • Formal review at the USPTO, substantive examination by a patent examiner.
    • Grant of patent if the application meets requirements, providing exclusive rights for 20 years.
  • Legal Considerations and Recommendations
    • Legal representation, such as from a registered patent attorney, is advisable.
    • Regular checks on the USPTO website for updates or changes in requirements are recommended.

What Is a Plant Patent?

A plant patent is a form of intellectual property protection granted to a newly developed and distinct plant variety reproduced through asexual methods like grafting or cloning rather than through seeds.

The primary aim of a plant patent is to incentivize the creation of improved plant varieties by providing the inventor with exclusive rights to control the propagation, sale, and utilization of that specific plant for a limited duration.

How To Determine the Inventor of a Plant Patent?

In most cases, an inventor plays a role in either discovering or asexually reproducing a plant. However, if an inventor instructs a service to handle asexual reproduction, the individuals performing that service are not considered co-inventors.

What Plants Can’t be Patented?

Plants found in the wild can’t be patented because they naturally exist. However, if a plant is discovered in a cultivated area, it can be patented, even if it’s on someone else’s land. But, just so you know, a tuber plant like a potato can’t be patented.

How Do I Get A Plant Patent?

The United States Patent and Trademark Office (USPTO) oversees plant patents according to the Plant Patent Act. If you’re applying for plant patents, here are the criteria you must meet in order to qualify.

  • Must be a novel plant variety
  • Unique
  • Non-obvious
  • Distinctive
  • Asexually reproduced
  • Invented or discovered in a cultivated state
  • Not excluded by statute.

This means that the patent is limited to plants developed through intentional human actions, such as breeding, rather than those occurring naturally. The patent process involves demonstrating that the plant is distinct and new, and it must be a result of human efforts in either invention or discovery.

How Long is the Validity of a Plant Patents?

The patent is valid for 20 years from the filing date, granting the patent holder exclusive rights to sell, use, and reproduce the patented plant during this period.

It’s crucial to distinguish plant patents from utility patents, which cover inventions and discoveries of new and useful processes, machines, manufactures, or compositions of matter. Plant patents specifically pertain to new and distinctive plant varieties.

What Are the Process and Guidelines for Applying Plant Patents?

Plant Patent Application Guidelines:

Here are some guidelines to help you through the process of applying for a plant patent:

  • Before initiating a plant patent application, it is crucial to verify the latest requirements on the USPTO website and confirm that application fees align with the current rates, which may undergo changes.
  • Submitting an incomplete application poses the risk of rejection by the USPTO, potentially leading to the loss of valuable intellectual property rights. Be mindful that improperly filed applications may result in the forfeiture of these rights.
  • Refer to the USPTO fee schedule (subject to change) for details on filing, searching, and examination fees.

It is important to note that, as of now, plant patent applications under 35 U.S.C. 161 cannot be submitted electronically, such as through the USPTO’s Patent Center on their website.

Preparing the Application for a Plant Patent:

The process and guidelines for applying for plant patents involve several steps, including the discovery of a new and distinct variety of plant, asexual reproduction, and the preparation and submission of a plant patent application. Here’s a breakdown of the key steps and guidelines:

Discovery and Asexual Reproduction:

  • The inventor must first discover or identify a novel and distinct variety of plant.
  • Asexual reproduction of the plant must be conducted to ensure an exact genetic copy of the original plant.

Verify Stability:

  • The inventor must observe the clones or reproductions of the plant over time to confirm stability.
  • This step ensures that the unique characteristics of the plant are not due to temporary factors like disease or environmental conditions.

Oath or Declaration:

  • The inventor(s) must file an oath or declaration stating that they have discovered, asexually reproduced, and observed the claimed plant.
  • If the plant is newly found, the declaration must also confirm that it was found in a cultivated area.

Application Preparation:

  • Thoroughly document and record all characteristics of the plant through at least one growth cycle.
  • Prepare a complete botanical description covering the genus, species, habit of growth, cultivar name, precocity, and other distinguishing characteristics.

Drawing Preparation:

  • Create drawings or photographs of the plant, emphasizing the most distinguishing characteristics.
  • Drawings may be in color if color is a distinguishing characteristic, and colors must correspond to a recognized color dictionary.

Application Assembly:

  • Compile all necessary documentation, including the oath or declaration, detailed botanical description, drawings, and any related information.
  • Ensure that all parts of the plant are observed and documented, covering aspects like buds, bark, foliage, flowers, fruit, etc.

Application Filing:

  • File the plant patent application with the United States Patent and Trademark Office (USPTO).
  • Submissions may be in paper form, as electronic filing is not allowed for plant patent applications.


  • The application undergoes a formal review at the USPTO’s Office of Patent Application Processing.
  • If formal requirements are met, the application is assigned to a patent examiner for substantive examination.

Examiner’s Evaluation:

  • The examiner evaluates the application for compliance with patent rules and laws, comparing the claimed plant to existing prior art.
  • The level of detail required in the botanical description depends on factors like the market class and commercial activity.

Grant of Patent:

  • If the plant patent application satisfies all requirements and is deemed novel, distinct, and non-obvious, a plant patent is granted.
  • The patent provides exclusive rights to the inventor for a period of 20 years from the filing date.

It’s essential to note that seeking legal representation, such as a registered patent attorney or agent, is advisable during the application process to ensure compliance with all requirements and increase the likelihood of a successful patent grant. Additionally, regular checks on the USPTO website for any updates or changes in requirements are recommended.

How Can Our Attorney Guide You in Applying for a Plant Patent in Washington, DC?

If you’ve poured your passion into cultivating a one-of-a-kind plant, securing and applying for a plant patent could unlock incredible opportunities. At War IP Law, our legal team is poised to assist you in navigating the complexities of the application process, ensuring that your remarkable creation receives the protection it truly deserves. We are dedicated to supporting your dreams and positioning your unique plant for success.

Our firm takes pride in a proven track record of successfully guiding clients through the intricacies of the plant patent application process. With an in-depth understanding of the specific requirements outlined by the USPTO, our attorneys bring a wealth of experience to the table. We recognize the challenges you may encounter and are well-equipped to address them effectively. When it comes to applying for plant patents, we offer the skills and experience necessary to help you reap the rewards of your innovation.

Take the opportunity to schedule your personalized client review today and cultivate your success. Reach out to us at War IP Law and embark on a journey to secure your plant patent.