Plant intellectual property protection options vary from country to country, depending on the type of plant invention, such as a DNA sequence, a gene, a new biotechnology method, a plant cultivar or hybrid. 

Types of plant intellectual property protection include utility patents, plant patents, plant breeders rights, trade secrets and contract law.

The first type of intellectual property protection is the utility patent. In the United States utility patents provide protection to “any new and useful manufacture, or composition of matter, or any new and useful improvement thereof” (35 U.S.C. §101).  This includes plants, plant parts (such as seeds, pollen, fruit, flowers), plant cultivars, hybrids, transformed cells, vectors, genes, gene fragments, proteins, DNA, RNA and processes of making any of these. Any plant innovations which meet the statutory requirements of novelty, utility, and nonobviousness are eligible for utility patent protection. Patents have been issued in the U.S. for plant inbreds, hybrids, plant parts, biotechnology methods, genes, and many other plant innovations. 

A second type of intellectual property protection, unique to the U.S., is the Plant Patent. The requirements for obtaining a plant patent are similar to those for obtaining a utility patent and the term of a plant patent is the same as that of a utility patent. The plant patent is available for asexually reproduced plants only.

A third type of intellectual property protection is provided by The International Convention for the Protection of New Varieties of Plants, known as UPOV. UPOV is also known as plant breeders rights. Some of the rights provided by UPOV include limiting the use of farm-saved seed and providing rights over harvested material and their direct products.

In the U.S., the Plant Variety Protection Act (PVPA) provides patent-like protection for sexually reproduced and tuber-propagated plant varieties.  Unlike utility patents and plant patents which are granted by the U.S. Patent and Trademark Office, the PVPA is administered by the U.S. Department of Agriculture. The Plant Variety Protection Act was enacted to allow a “breeder of any sexually reproduced or tuber propagated plant variety who has so reproduced the variety” to receive protection for the variety if the variety is new, distinct, uniform and stable.

It is important to remember that plant variety protection laws vary from country to country. Our firm has extensive experience with plant protection in the U.S. and around the world. Our firm has earned its reputation based on the extensive training and experience, both scientific and legal, of its professional staff.

We strive to obtain for our clients the best protection available through a thorough and creative approach in preparing and prosecuting patent applications, negotiating and drafting license agreements, collaborative research, development and marketing agreements, materials transfer agreements and other types of agreements relating to biotechnology.