A Brief Intro of Plant Patents under the U.S. Law (美国的植物专利制度简介)

A Brief Intro of Plant Patents under the U.S. Law (美国的植物专利制度简介)

美国的品种保护制度有两方面,一是《植物专利法》,二是《植物新品种保护法》(管有性繁殖)。本文集中于植物专利制度的介绍 – Plant Patents – patents on asexually reproduced plants


A plant patent is granted by the government to an inventor (or her assigns/heirs) 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.

While natural plant mutants might have naturally occurred, they must have been discovered in a cultivated area.

35 U. S. C. Sec. 161:

“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…”


To be patentable, it is also required:

  • That the plant was invented or discovered in a cultivated state, and asexually reproduced;
  • That the plant is not a plant which is excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part, as with potato or Jerusalem artichoke;
  • That the inventor named for a plant patent application must be the person who actually invented the claimed plant, i.e., discovered or developed and identified or isolated, and asexually reproduced the plant;
  • That the plant has not been patented, in public use, on sale, or otherwise available to the public prior to the effective filing date of the patent application with certain exceptions;
  • That the plant has not been described in a U.S. patent or published patent application with certain exceptions;
  • That the plant be shown to differ from known, related plants by at least one distinguishing characteristic, which is more than a difference caused by growing conditions or fertility levels, etc.; and
  • That the invention would not have been obvious to one having ordinary skill in the art as of the effective filing date of the claimed plant invention.


If a group of staff or collaborators contributed to the final plant invention, everyone would be considered co-inventors.

However, an inventor may direct that the step of asexual reproduction be performed by a custom propagation service or tissue culture enterprise. Those performing the service would not be considered co-inventors.

Asexual reproduction

Asexual reproduction is the propagation of a plant without the use of fertilized seeds to assure an exact genetic copy of the plant being reproduced. Any known method of asexual reproduction which renders a true genetic copy of the plant may be employed. Acceptable modes of asexual reproduction would include but may not be limited to:

Rooting Cuttings: 插条生根 Grafting and Budding: 嫁接和出芽
Apomictic Seeds:单性种子(孤雌苗) Bulbs:鳞茎
Division Slips
Layering Rhizomes
Runners Corms
Tissue Culture Nucellar Embryos

The purpose of asexual reproduction is to establish the uniformity and stability of the plant. This second step of the invention must be performed with sufficient time prior to application for patent rights to allow a thorough evaluation of propagules or clones of the claimed plant for stability, thus assuring that such specimens retain the identical distinguishing characteristics of the original plant.

Rights Conveyed by a Plant Patent

The grant of a plant patent, 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
  • 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.

Currently (as of March 2020), plant patent applications under 35 U.S.C. 161 are not allowed to be filed electronically.


Those seeking a plant patent should be aware that they may prosecute their applications through the services of a registered patent attorney or agent.

With some exceptions, a plant patent application is subject to the same requirements as a utility application. Title 37 of the Code of Federal Regulations, Section 1.163(a), requires that the specification must contain as full and complete a botanical description as reasonably possible of the plant and the characteristics which distinguish that plant over known, related plants. The components of a plant application are similar to those of a utility application.

While background information for specific classes of plants may be readily available, one seeking to file a plant patent application should be thoroughly familiar with the characteristics of the plant and must assure that the plant is stable.

Invention for purposes of a plant patent is a two-step process:

  • discovery step, which involves the identification of a novel plant.
  • The second step, which consists of asexual reproduction, tests the stability of the claimed plant to assure that the plant’s unique characteristics are not due to disease, infection, or exposure to agents which cause a change in the plant’s appearance which is transitory and not due to a change in the genotype of the plant.

It is important that each of the above steps is satisfied before an application is filed.

Filing of an application before the second step of the invention has been completed will result in rejection of the claim as being premature and non­statutory.

Chapter 1600 of the Manual of Patent Examining Procedure (the MPEP) available from the USPTO’s Web site (http://www.uspto.gov/web/offices/pac/mpep/mpep-1600.html).



USPTO Reference