What Is a Plant Patent Search?

A plant patent search covers information about patents granted by the government to protect ownership rights of unique and asexually reproducing plants. As you might expect, plant patents are only a fraction of the patents filed every year. For example, in 2012 there were 576,763 patent applications filed—860 were granted. Only 1,149 of those were for plants.

Before you file for a patent of any kind, it is essential to determine if any similar creations have already been patented. The same goes for the protections afforded to those who create new varieties of plants. You must determine that no one else has created a substantially similar variety of plant so that you are clear to file for your patent.

Why Is a Plant Patent Search Important?

Filing for a patent can be quite expensive, especially when one considers not only the filing fees but the rounds of revisions that may be necessary and the legal fees involved. Performing a plant patent search can save you a great deal of time and money as well as avoid you accidentally violating someone else's patent, which could lead to further civil issues in the future.

Plant patent searches also allow you to discover if your plant is new or if it has been otherwise created already. It allows you to see what similar plants have also been patented, which can further drive your research. You can see how the science of plant design has progressed. Finally, you can review examples of approved patents to get a better handle on how to draft your own.

How Do I Perform a Plant Patent Search?

The two major resources for searching plant patents are the USPTO website and the Google Patents database. Searching the USPTO's PatFT or AppFT database can be done in two manners:

  1. Search by patent number using the patent search form. This method works only if you are searching for a specific patent and you already known the number, which will begin with "PP," followed by a five-digit number (PP00213, for example).
  2. Search by PLT class. This allows you to search based on the type of plant, its characteristics, its habit (is it a shrub or a climber?), and further sub-classifications (roses by color, for example). To perform this you'll use the advanced search forms and enter "CCL," followed by the PLT classification number. Thus, searching for PLT 101 class plant patents, your query string would be "CCL/PLT/101."

Searching Google Patents lets you perform an easy keyword search of both EP and U.S. patents. For those who are less technical, this can be an easier solution. You would, for example, simply search for "azalea" and then use the search tools option to filter your results. You could narrow your search down to U.S. patents, and filter by patent type to look only at plant patents.

Many university libraries maintain photographs of plant patents. These records will contain many items related to how the plant was discovered. Every patent you search will have photograph of the parts of the plant, including its blossoms and fruits. You can generally search for these photographs online by their patent numbers.

Another way to search for plant patent photographs is in the Official Gazette. The Official Gazette is published weekly by the USPTO. Each issues contains patent information and drawings for each patent granted on that date. You can browse the Gazette by year going back to 1995. There is also a Consolidated Listing of Notices that details rule changes. Two other Gazettes—the Official Gazette for Patents and the Trademark Official Gazette—are available online.

Many countries provide their own patent search databases, which can be useful further guides for research.

A final option, which costs more but often yields more complete results, is to call on the services of a professional patent searcher or use the resources provided by professional databases, which can include Westlaw, Bloomberg Law, the World Intellectual Property Organization, the European Patent Office, and others.

What Are Other Forms of Classification?

Patents use a tree structure. Each level of the structure possesses a reference code. There are approximately 70,000 codes in the International Patent Classification scheme (IPC) and further extended by the CPC, or Cooperative Patent Classification, which is jointly managed by the U.S. Trademark and Patent Office and the European Patent Office.

What Does a Patent Contain?

Plant patents contain a lot of information. Some of this information includes:

  • The plant's description
  • The plant's habitat
  • It's characteristics
  • How it was created or discovered
  • Detailed photographs of the plant
  • Reference to similar plants

An invention must be unique to receive a patent. There are many ways to achieve this. Your invention can be brand new. It can be used to solve problems. It must be something that hasn't been thought of. Its use should be easy to understand. Without these features, getting your patent will be difficult.

What Is a Utility Patent?

A utility patent distinguishes between patent protections and other kinds of intellectual property. It is comparable to standard patents awarded in Australia and Europe. Any living organism in the United States that comes about due to human intervention (breeding, genetic modification in a lab, etc.) can receive patent protection.

In terms of plants, it grants ownership rights to a patent owner who has discovered or invented a new and distinct plant variety, which has also been sexually or asexually reproduced. Protection also extends to parts such as cultures and seeds.

Plant patents are issued by the U.S. Patent and Trademark Office and allow the patent owner to prohibit other people from breeding, selling, using, or importing the plant or any of its parts within the United States.

In Europe, patents are gained through the European Patent Office. All are controlled through the European Patent Convention as of July 2000 and the implementation of Directive 98/44/EC.

What Is a Plant Patent?

Plant patents provide similar protections to utility patents but are more limited in the types of plants they cover. These were first introduced through the Plant Patent Act of 1930, which was intended to encourage the breeding and genetic diversity of cultivated plants. The act allows for protection of asexually reproduced plants, except for tubers and those found in an uncultivated (natural) state.

A plant patent extends to only a single genome or a single plant and provides more limited protection. It does not, for example, protect mutants from the plant in question, its characteristics, or any technology that is developed in relation to its cultivation. For patents filed after October 27, 1998, this protection extends to plant parts from protected plants.

Plant patents have less stringent requirements than utility patents, in terms of implementation. This means, for example, that the description or enablement of the plant may not need to be quite as detailed or thorough in a plant patent as in a utility patent, and there is no requirement for depository.

Finally, the "non-obvious" test is not part of the plant patent process, since it is difficult to cultivate a new plant in a way that's not obvious. It is possible to obtain both a plant patent and a utility patent for the same plant.

What Kinds of Plants Can Be Protected?

Several types of plants can be patented. These include:

  • New plants
  • Transgenic plants
  • Groups of plants
  • Individual plants and their descendent plants
  • Traits of plants
  • Parts of plants
  • Components (chromosomes, genes, etc.)
  • Products like oils and fruits
  • Materials from plants like cells used to cultivate plants
  • Seeds and cuttings
  • Cell cultures
  • Plant breeding methods
  • Processes and vectors used to produce transgenics.

Is Natural Material Protected?

In order to qualify for patent protection, the creation must be novel — that is, unique or possessed of a property that is unknown elsewhere. Naturally-occurring material (occurs in the wild) is not novel.

The types and qualities of plants that are patentable differ in different places across the world. In the United States, for example, a specific variety of plant can be patented. In Europe, a variety of plant can only be protectable if it can be characterized by a specific gene.

Likewise in Europe, plants that are transgenic can only be patented if they are representative of a broad grouping, as opposed to being restricted to a variety of a group. Plant cells, on the other hand, are counted as microbiological and can be patentable in Europe under the European Directive.

Protections Granted Under Patent

A patent grants ownership over all aspects of the patented device. This means that the patent holder can exclude or limit other people from making the device, selling it, importing, or even using it for the full length of the protection. In terms of plants, this extends to reproducing or breeding the plant.

Trade Secrets

Trade secrets are those things that allow businesses or commercial entities to remain competitive in the marketplace and are what patents largely exist to protect.

Trade secrets require three elements:

  1. Secrecy. All trade secrets are confidential.
  2. Novelty. Just as with a patent, the protected secret must be unique and novel.
  3. Value. The secret must have commercial value or provide a competitive advantage.

Trade Secrets and Plant Protection

The advantages of using trade secret laws basically reside in the fact that they are unlimited in scope — there is no time limit for protection. However, trade secrets don't stop competitors from reverse engineering, including the use of DNA.

If a breeder makes efforts to keep the variety confidential and out of public domain, trade secrets can protect plant varieties in the United States. In order to accomplish this, efforts have to be undertaken to maintain the confidentiality of the plant's gene sequence.

In other nations such as Australia, it may theoretically be possible to use trade secrets to protect plants, but case law is lacking in examples.

Other Methods to Control Plant Rights

There are a number of other methods used to control plant rights by patent holders, including Genetic Use Restriction Technology, Material Transfer Agreements, and Technology Use Agreements. A GURT (Genetic Use Restriction Technology) allows the user to control an organism's gene expression. This allows for restricting its overall use.

GURTs can be at the variety or the trait level (v-GURT or t-GURT). At the variety level, the seeds of the plant become sterile, where the trait level requires chemically-induced "switches" to turn on a trait expression.

A Material Transfer Agreement (MTA) is a legal agreement that allows for limited use of an intellectual property. Under an MTA, plant varieties, cell lines, vectors, chemicals, transgenics, and other factors of custom plants can be transferred for use along with any limits the patent holder wishes to impose.

Finally, a technology use agreement is generally formed between farmers and suppliers, which controls, extends, or limits the rights to use of a given speed in a specific place over a specific period of time. It allows propagation of the protected plant, while still keeping its use in the hands of the patent holder.

Plant Breeders Rights

While in the United States, breeders are protected by plant patents. In other countries, including the European Union and Canada, breeders are protected by Plant Breeders Rights. The process of obtaining protection is similar — the breeder files an application and gains formal rights in the process.

The major difference is that with PBR, the breeder has up to a year within the first date of sale within their territory, or four years outside of their territory, to file. If the plant is a vine or tree, the period may stretch to six years. In addition, test plants have to be submitted for comparison against the nearest related plant and assessed for stability as well as uniqueness.

These rights generally last for 25 years, or 30 for vines and trees and applications must be processed by a resident of the territory where the application is filed. Legal representation is also required, and this representative may serve as an agent for the breeder.

The costs of PBR can wildly vary from place to place. In Europe, these can cost the equivalent of up to $5,625 USD and require annual maintenance fees that can range up to $400 USD equivalent.

Trademarks and Plant Patents

Trademarks are generally not applicable to plants, though a trademark can protect the name, symbol, or description of the plant species. Patents protect the actual invention, while trademarks protect the brand identity.

In order to apply a trademark to your plant name, you would use the ™ symbol next to its name. This symbol does not carry the legal federal backing of registration. If you register a trademark, you can use the ® symbol to denote this status. Registering a trademark gives you the assumption in court that your mark is valid. The USPTO recommends registering trademarks for plant name and value.

In order to file a trademark, you will first need to thoroughly research to ensure that no existing marks are already registered. You must then file paperwork which carries a fee of $325, with a further $100 fee upon awarding the registration, unless you can demonstrate that the registration was filed after actual commercial use. Filing can be done on paper or electronically. It is highly recommended that you consult with an attorney prior to undertaking trademark registration.

CPC Classification and Search Tips

The patent classification system that you will use to search for your plant patent is known as the Cooperative Patent Classification. The CPC provides a more robust system for classifying patents so that they are more easily searchable.

The CPC classification system is broken down into nine main categories. The nine classes that the CPC uses are:

  • A: Human Necessities
  • B: Performing Operations and Transporting
  • C: Chemicals and Metallurgy
  • D: Textiles and Paper
  • E: Fixed Constructions
  • F: Lighting, Heating, Weapons, Mechanical Engineering, Blasting Engines, or Pumps
  • G: Physics
  • H: Electricity
  • Y: General Classifications of New Technology or Cross-Over Technology that Spans Across IPC

These broad CPC categories may also be broken down into smaller categories, which appears similar to an outline. Every section of the CPC is broken down to subcategories that are Class, Subclass, Main Group, and Subgroup. Structuring the patent classification system in this way provides more information about a given patent and makes it easier for you to search.

It's a good idea to learn some tips for searching the system when you're considering filing a patent. There are seven basic steps that you should follow for a successful patent search:

  1. Brainstorm: Come up with as many descriptive terms that you can for your invention. This can include your invention's purpose, what materials it is made of, how it is used, and if there is any technical terminology that could be applied to your invention.
  2. Start Your Search: With a description of your invention in mind, you need to do a search on uspto.gov. Search "CPC Scheme" combined with the best term for your invention. This will give you a list of classification you can browse until you find the one that best matches your invention
  3. Review Classifications: Read and review the CPC classification definitions to make sure that you are searching in the right class of your invention.
  4. Check for Similar Patents: Search the CPC classification of your invention to see if a similar patent has already been filed. Always check the full text of a patent to see if it has been proved. If your invention has already been patented, you will not be able to file a patent.
  5. Fully Review Similar Patents: If you've found patents that are similar in nature to your invention, review them fully. It's possible that the existing patents will not preclude you from patenting your own invention if there are enough difference. After reviewing these documents, you will need to decide if you should continue with the patenting process.
  6. Check Pending Applications: Because patenting an invention is a slow process, it's possible that an invention similar to yours is awaiting approval. Check pending applications to see if someone has previously applied for your invention.
  7. Expand Your Search: You should make sure to be as thorough in your patent search as possible. In addition to using keywords in your search, you should search for foreign patents, search the now defunct USPC, and look in materials not related to patents like books and magazines.

Limitations of a Free Search Database

In 2010, the United States Patent and Trademark Office collaborated with Google to provide the public with a free patent search. The database, called Google Patent, features thousands of patents that you can search and read if you're considering patenting your own invention. While convenient, there are some risks to using Google Patent that you should know about.

First, because of complex classifications, searching for patents can be difficult. Google Patent provides no guidance for searching their database, which means you may spend a great deal of time before you find the information that you need. Secondly, because the Google Patent database is not comprehensive, you may end up trying to patent an invention that has already been claimed due to an incomplete search.

Instead of using a free search database like Google Patent, the better idea is to use a professional database like the one provided by the USPTO. However, before you begin your search with the USPTO, you need to understand their classification system.

The USPTO uses a class/subclass classification system. This hierarchical system can become very complicated depending on how specific a search you are doing. For example, every subclass can have its own subclasses, which means you may need to search through several layers before finding patents that are relevant to your invention. You can get more information about these classifications by consulting a professional.

Types of Patent Searches

When you're considering patenting an invention, there are several types of searches that you could use depending on your needs. A few of the most common search types include:

  • Novelty or Prior Art Search: Prior art is technology that is related to your invention but does not include your specific invention. This type of search is done when your invention improves upon an existing product. A novelty search will return prior art results and help you decide if your invention is unique enough to warrant a patent.
  • State of the Art Search: When you perform a state of the art search, you are looking for all of the patents that are being applied for in a specific field. Although this search type is broad, it can let you know what inventions are being patented and how your invention fits into its field. State of the art searches are commonly used by research and development groups.
  • Infringement Search: Infringement searches search for legal claim holders for older patents or for products that were once sold in the public. An infringement search is usually performed in the lead-up to an infringement lawsuit after patent has been granted incorrectly
  • Validity Search: A validity search is a search to determine whether there is an older patent that would invalidate a newer patent. As with infringement searches, validity searches are often performed as part of a lawsuit.

Exemptions to Patent Infringement

In the United States, there are no infringement exemptions. At one point in time, researchers could access an invention for experimental purposes, an exemption known as "experimental use exception." However, recent case law has overturned this exemption, and if it was ever a legitimate defense, it no longer is.

In addition, in the United States, each inventor can retrospectively apply for a patent during a grace period of 12 months of disclosure, commercialization, or publication. Some other countries, such as Japan, also have limited grace periods or are considering such an implementation.

In Australia, there is a prior use exemption that allows those using the invention before a claim priority date to continue using it. In the EU, farmers are protected under farmer's privilege, which allows them to use seeds under patent for their own use, but may not re-sell the protected seed. Each Member State can also define its own exemptions.

International Union for the Protection of New Varieties of Plants

The UPOV, or International Union for the Protections of New Varieties of Plants, is a purely voluntary organization comprised of members from many different countries. No country is obliged to join UPOV based on organizational affiliation or signing of treaties.

Those countries that join the UPOV are bound by its Convention, which requires members to define intellectual property for varieties of plants — Plant Breeder's Rights. Its goal is to encourage investment in breeding of plants and to grow and enhance the industry by providing for a limited time exclusive rights to use a newly-developed plant by the inventor, after which the plant becomes public domain.

There have been three versions of the UPOV, the latest of which was in 1991. Not all countries have signed onto all three revisions. 26 are bound by the 1978 revision, and Spain and Belgium remain bound by the original 1961 version.

Providing TRIP Framework

UPOV framework allows for countries who are WTO members to fulfill TRIP (Trade-Related Aspects of Intellectual Property) requirements of providing "effective sui generis systems." All member states are required to provide patents or sui generis protections (or a combination) to protect intellectual properties of new varieties of plants.

Since sui generis is a somewhat contentious point, UPOV frameworks provide a very useful benefit for those countries who sign on.

UPOV Revisions

The UPOV Convention has been revised twice, in 1978 and 1991. These revisions provided the following restrictions:

  • 1978: Eligible plants must be distinct, uniform, and stable; protection for commercial use and reproductive material; protection duration of 15 years (18 for vines and trees); and breeder's exemption in place.
  • 1991: Eligible plants must be distinct, uniform, stable and new; protection for all plant varieties, derivations and products; protection duration of 20 years (25 for vines and trees); and breeder's exemption based on member state's individual legislation.

Sample Member Countries and Protection Mechanisms

  • United States: A UPOV member with TRIP requirements, the U.S. Plant Variety Protection Act of 1970 (amended in 1994). This act is administered by the Department of Agriculture. It protects sexually reproduce plants, first-gen hybrids and tubers. It requires a seed deposit and provides only limited farmer's exemption rights.
  • Australia: Both a WTO and a UPOV member, Australia has a PBR system administered by the Plant Breeder's Rights Office and established under the Plant Breeder's Rights Act of 1994, which recently was brought into IP Australia.
  • European Union: IP rights are provided under the CPVR, or Community Protection of Plant Varieties and extend to all EU member states. In addition, each nation in the EU can develop its own legislation as alternative protection. One cannot hold both CPVR and individual national protection simultaneously. CPVR rights supersede national rights when granted.
  • India: As a developing nation whose economy relies on domestic agricultural production, India has a sui generis system formed under the Indian Protection of Plant Varieties and Farmers' Rights Act of 2001. This divides plants into four classes: new, extant, derived and farmers' varieties. Requirements for protection include novelty, distinctness, stability and uniformity. Farmers are permitted to plant, save, use, share, exchange or sell produce from his own farm, even if seeds are protected. If seeds are branded by the breeder's name, however, they may not be sold. Benefit sharing is also permitted.

Frequently Asked Questions

  • Who can obtain a plant patent?

The person who discovered or created the new plant species. This person must be named on the patent. Each inventor must sign a Declaration. All patent rights are personal property. They belong to their inventors or successors.

  • What is Plant Patent Applied For?

The moment you submit an application, you may mark your plant as "Plant Patent Applied For." This is similar to a "Patent Pending." This allows marketing and licensing your plant while your patent is processing. It also provides you some legal protections.

  • What is "ordinary meaning?"

Plant patent protection extends to the "ordinary meaning" of a plant, which means a living plant whose characteristics can be duplicated via asexual reproduction, but cannot be manufactured or otherwise made.

  • What kinds of plants are considered for protection?

Hybrids, mutants, transformed plants, and hybrids are considered. Sports or mutant plants can be induced or develop spontaneously. Hybrids can occur naturally, somatically or via planned breeding, but must have formed in a cultivated area rather than in the wild. While micro-fungi and algae are considered plants, bacteria are not.

  • Are there other kinds of plant protection?

Other forms of protection include Utility Patent protection, which is generally applicable to the results of highly technical breeding programs which produce an entirely new class from the creation of novel common characteristics. For those outside the United States, Plant Breeders Rights protect those who create new plants.

  • How do I patent a plant?

The process for patenting a plant, at its most basic, involves filing an application at the U.S. Patent and Trademark Office which includes a detailed overall description of the plant variety, including its origin, photographs of its major characteristics, an explanation of its origin. The papers also require a declaration that the plant variety is new and unique, that it was custom bred or discovered through cultivation and not found in the wild.

If the filing is accepted at the USPTO, a patent examiner will go through it within about 9 to 15 months, and may accept the application, or request additional information. When the examiner is satisfied, the applicant will be mailed a Notice of Allowance and will then have to pay an issue fee. About three months later, the actual patent will be mailed.

  • Do I need a patent attorney?

You are not required to hire a patent attorney. However, it is a good idea. Patenting a plant is complicated. An experienced attorney will understand the correct patent process. This will make it much easier for you to receive your patent.

  • What is the timeline for filing a patent?

You have 12 months to file your patent from when your plant was first available. This includes description in a publication of any kind.

  • What are the fees involved?

The application fee is $750. There is also a $1,190 issue fee. You may also need to pay attorney's fees. These can range from $2,750 to $4,000. Your legal fees will increase the longer the patent process takes. There are no annual fees to maintain the patent.

  • What's the term of a plant patent?

Plant patents last for 20 years from the filing date. This excludes patents filed before June 8, 1995. Pre-1995 patents last for 17 years.

  • How can I grow a patented plant for wholesale?

You will need permission from the plant's patent holder. You may have to pay royalties after permission is given.

  • Why should I pay royalties to use patented plants?

While carrying patented plants if you're a landscaper or retailer can mean less profit in the short-term, the reason for creating such plants is to make more desirable, heartier breeds which often outweigh the additional cost.

  • How do I know if I should patent my plant?

Does your plant carry special benefits that justify the costs involved in filing for the patent? Will people pay the royalties you want to charge, and is it going to be worth marketing on the open market? Is it unique in terms of habit, reproductive ease, flower color, flavor, or another way? You will need to perform market research to determine if your plant can deliver a constant and steady stream of royalties for years to come.

  • Is it illegal to breed from a protected plant?

This question has not been fully answered. It is better to not take the risk. Wait until its patent has expired before breeding. This helps you avoid royalties and legal action.

Getting Help

Anytime you are looking to patent an invention, natural or technological, the process is complicated and fraught with pitfalls to avoid. To make sure that your patent application process goes as smoothly as possible, you should post your patent or other business legal need on UpCounsel and receive free custom quotes from the top 5% of lawyers with an average of 14 years of experience.

UpCounel's attorneys have the knowledge needed to help you apply for your patent. Contact UpCounsel today for more information about our services.