A Step-by-Step Guide
In the dynamic US market, establishing and protecting one's patent is crucial to a company's success. The Plant Patents protection lasts for 20 years and gives inventors the right to prevent others from reproducing, selling, or using the plant. Covers distinct and new varieties of asexually reproduced plants (other than tuber propagated plants or plants found in an uncultivated state). This guide aims to clarify the plant patent registration in US so that businesses can effectively register their plant patent and protect their intellectual property assets.
Contents
1. What Can be Registered as a Plant Patents in US?
2. The Plant Patents Registration Process in US?
3. Reasons for refusal of a Plant Patents application in us?
4. Documents Required for Plant Patents in US
5. Plant Patents Costs in US are these fees correct?
6. What is an Information Disclosure Statement?
7. Conclusion
1. What Can be Registered as a Plant Patents in US?
A plant patent is granted by the United States government to an inventor (or the inventor's heirs or assigns) who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. The grant, which lasts for 20 years from the date of filing the application, protects the patent owner’s right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any part thereof, into the United States. This protection is limited to a plant in its ordinary meaning:
◆A living plant organism which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction, but cannot otherwise be "made" or "manufactured."
◆Cultivated sports, mutants, hybrids, or transformed plants, where sports or mutants may be spontaneous or induced, and hybrids may be natural, from a planned breeding program, or somatic in source. While natural plant mutants might have naturally occurred, they must have been discovered in a cultivated area.
◆Algae and macro-fungi are regarded as plants, but bacteria are not.
2. The Plant Patents Registration Process in US?
The applicant should be familiar with the characteristics of the plant and must be sure that the plant is stable. The application process can be divided into two stages:
●Stage I:
The discovery phase covers the identification of novel plants. This stage takes place in the cultivation field and may include the identification or confirmation of offtypes of a known species of plant produced in monoculture, or of selected spontaneous or induced mutations, or of individuals that are the result of crosses in a breeding program.
●Stage II:
Propagation of plants by asexual reproduction to test the stability of a plant within the scope of the patent application and to determine that the plant possesses unique characteristics that are not due to a temporary change in appearance caused by disease, infection, or exposure to reagents, or due to a change in the genotype of the plant.
*The above two stages must be completed before a plant patent application can be filed. The inventor must have discovered or identified the plant, propagated the plant by asexual reproduction, and observed the plant for a sufficient period of time to confirm that all the traits of the replicated offspring are identical to those of the parent plant. As the scope of the patent application is not yet mature and does not meet the requirements of the statute, if the patent application is filed before the completion of the second stage, the patent application will be rejected.
3. Reasons for refusal of a Plant Patents application in us?
Top 3 common USPTO patent rejections:
◆Obviousness: The patent office will conduct a search for prior art, which is any previous disclosure of the invention or similar invention. If prior art is found, the patent application may be rejected.
◆Lack of novelty: The invention must be new and non-obvious in order to be eligible for a patent. If the invention has been previously disclosed or is already in use, the patent application may be rejected.
◆Inadequate disclosure: The patent application must include a detailed and complete description of the invention and how it works. If the application is lacking in detail or is unclear, the patent office may reject the application.
4. Documents Required for plant patent in US?
To apply for the plant patent, the applicant should prepare the elements or files below:
◆Application transmittal form
◆Fee transmittal form
◆Application data sheet
◆Specification
◆Drawing
◆Inventor’s declaration or oath. The claim will be in the specification, which should disclose the plant as well as its distinguishing characteristics.
The specification will also include in formal terms the title of the invention, cross-references, a statement about federal research, the Latin name of the plant’s genus and species, the plant’s variety denomination, the background, a summary, a description of the drawing, a detailed botanical description, a single claim, and an abstract of the disclosure. The specification should include how and where the variety of plant was asexually reproduced or the area where it was discovered.
The patent claim should specifically name the plant or tree rather than referring to its fruit or flower.
In case the examiner deems the plant description in the patent as insufficient, it may be possible to elaborate or add details without deviating significantly from the original description and accompanying photograph. Any illustrations must adhere to the examination regulations in terms of artistic competence.
Additionally, the applicant might be required to provide plant, flower, or fruit specimens at a specific stage of growth for examination, although these should only be submitted upon request. If sending specimens is not feasible, the plant must be made accessible for inspection where it is cultivated.
5. Plant Patents Costs in US are these fees correct?
SEE Fee Schedule (US).
6. What is an Information Disclosure Statement?
It is the responsibility of every patent applicant to disclose all known prior art or other relevant information to the USPTO for consideration in a pending patent application. This duty of candor is fulfilled by submitting the prior art information in the form of an Information Disclosure Statement (IDS). Merely including such information in the specification of a patent application is not considered adequate.
7. Conclusion
The US plant patent registration process is a multifaceted journey that demands careful planning, thorough research, and strategic decision-making. By understanding the intricacies of the process and leveraging professional guidance when necessary, businesses can effectively protect their brand identity and capitalize on growth opportunities in the dynamic US market. With its efficient registration system, robust legal framework, and strategic positioning in the Asia-Pacific region, US remains an attractive destination for businesses seeking to establish and safeguard their plant patent.
In the team of our law firm, each of attorneys, agents and experts is experienced in obtaining and protecting a plant patent, from plant patent prosecution to handling infringements, appeals and litigations before the courts. We, Lewis & Davis Patent Attorneys Office, are capable to give you the most secure protection on your plant patent and intellectual property rights.
Contact us if you wish to find out more about IP protection.