Patent and Trademark Resource Center (PTRC)

Several types of intellectual property protection instruments are commonly applied to plants. These includes plant patents and utility patents issued by the U.S. Patent and Trademark Office and plant variety protection certificates issued by the Plant Variety Protection Office.

Plant Patents can be issued by the U.S. Patent and Trademark Office for plants that are reproduced asexually (35 U.S. Code § 161-164).

Plant Variety Protection Certificates can be issued by the Plant Variety Protection Office for asexually reproduced plants, seeds, and tubers (7 U.S. Code Chapter 57).

Utility Patents can be issued by the U.S. Patent and Trademark Office for genes, traits, methods, plant parts, or varieties (35 U.S. Code § 111).

Under the 1930 Plant Patent Act, inventors can obtain patents for inventing or discovering plants that can be reproduced asexually (35 U.S. Code § 161-164). This includes cultivated sports, mutants, hybrids, and newly found seedlings. Asexually propagated plants are plants that are reproduced by means other than from seeds, such as cutting, layering, grafting, division, or cloning.

However, plants discovered in the wild and tuber-propagated plants, such as potato (Solanum tuberosum) or topinambur (Helianthus tuberosus) are not eligible for patenting under the Plant Patent Act.

To be eligible for a plant patent, the plant must be asexually propagated, new, and distinct from other known varieties (35 U.S. Code § 102-103). This means the plant must have at least one significant distinct feature that establishes it as a new variety.

The term of a plant patent is 20 years from the application filing date, or if the application contains a specific reference to an earlier filed application under 35 U.S. Code § 120-121 or 365(c), from the date the earliest such application was filed.

Plant patents provide the right to exclude others from making, using, selling, offering for sale, and importing the plant, or any of its parts. Plant patents protect a single plant and asexual progeny, and therefore any infringing plant must have the same genetics as the patented plant.

An example of a plant patent is the Honeycrisp Apple Tree (USPP7197P), developed by the Minnesota Agricultural Experiment Station's Horticultural Research Center at the University of Minnesota, which was granted in 1988.

View current published patents and patent applications for new plant varieties, traits, and breeding methods.

For more information about plant patents and the application process, please refer to General Information About 35 U.S.C. 161 Plant Patents.

The Plant Variety Protection Act (7 U.S. Code Chapter 57) is a law that provides intellectual property rights protection to plant breeders who create new varieties of seed-propagated and tuber-propagated plants (before 2018), and asexually reproduced plants (since the amendment of 2018). The Plant Variety Protection Act is administered by the Plant Variety Protection Office, which is under the Agricultural Marketing Service of the U.S. Department of Agriculture.

To be eligible for protection under the Plant Variety Protection Act, plants must be new, distinct, uniform, and stable. The Plant Variety Protection Office issues certificates of protection for plant varieties that comply with the International Union for the Protection of New Varieties of Plants (UPOV). Certificates are valid for up to 25 years for a variety of trees or woody vines (including their rootstocks), and 20 years for all other varieties of plants (excluding algae, bacteria, and fungi) from the date of issue.

Certificate holders have exclusive legal rights to market and exclude others from selling, marketing, offering, delivering, reproducing, importing, exporting, or using a variety in producing a hybrid or different variety. However, there are exemptions for private and non-commercial uses, experimental and research purposes, plant breeding purposes, and farmers’ privileges to save seeds for on-farm use.

An example of a plant variety protected under the Plant Variety Protection Act is the soybean cultivar “PSC37BU06” (200900326) developed by The Ohio State University, which was granted protection in 2010.

The Plant Variety Protection Certificate Status Database is a publicly accessible database that includes information on active and expired certificates and as provided through the Germplasm Resources Information Network (GRIN).

For more information about plant variety protection, please visit the Plant Variety Protection program webpage.

Plant genes, traits, and parts, as well as varieties, can be protected with utility patents since the 1980s. These patents are issued for “human-made” living organisms including plants, methods of breeding or genetic engineering, and molecular techniques. Utility patents offer the possibility to protect plant varieties that have specific traits, plant parts, and methods of producing or using plant varieties.

Like other utility patents granted for the invention or discovery of a “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” (35 U.S. Code § 101), utility patents applied to plants need to demonstrate that all statutory requirements are met. In addition to being useful, the invention has to be novel and cannot be already described in a printed or online publication, offered for sale, or demonstrated publicly (35 U.S. Code § 102). In addition, the invention has to be non-obvious when existing prior art is combined (35 U.S. Code § 103). Also required is that the invention and the specific characteristic of their claim be described in sufficient detail to allow a person reasonably skilled in the art to recreate the breeding process (35 U.S. Code § 112).

The term of a utility patent is 20 years from the application filing date. Utility patents provide the right to exclude others from making, using, selling, offering for sale, and importing the patented plant in the granting territory. Although the application process for utility plants is more involving than the application for plant patents, utility patents typically offer stronger protection to the patent holder.

The “Identification of soybeans having resistance to Phytophthora sojae” patent (US-7381862-B2) developed by St. Martin et al. at the Ohio Agricultural Research and Development Center at The Ohio State University is an example of a utility patent granted to The Ohio State University Research Foundation in 2008.

View current published patents and patent applications for new plant varieties, traits, and breeding methods.