It’s been a little while since we’ve talked about patent protection on the blog, but a recent consultation reminded me a primer on the different types of patents potentially available could be beneficial. Here in the United States, there are three broad categories of patents, all of which are governed by the Patent Act (or more formally, Title 35 of the United States Code). I’ll cover each below.
At its base, a plant patent protects a new plant created by a person. It can be granted to anyone who:
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. 35 U.S.C. § 161.
This is the arguably easier patent to obtain (the application only requires a description “as complete as is reasonably possible”), but it offers limited practical protection. In a case for patent infringement, the patent holder would have to show that the defendant asexually reproduced the plant or, without using seeds. Without direct evidence of theft through eyewitness testimony or something similar, proof of infringement can be difficult.