Beauty and law intersect to safeguard innovation in the seed industry.
The history of plant patents began in 1931 with a now-iconic plant variety — a climbing rose named New Dawn. This pale pink rose, known for its disease resistance and repeat blooms, was the first plant to be patented under the Plant Patent Act of 1930. While the seed industry is not intimately involved in roses, that patent set the stage for protecting all kinds of plants.
That patent marked the beginning of legal protection for plants, paving the way for countless new varieties that have since transformed gardens and the horticulture industry.
Since then, more than 28,500 plant patents have been granted, emphasizing the importance of this legal tool in promoting botanical innovation. The New Dawn rose wasn’t just a flower; it was a symbol of how legal protections could drive creativity and progress in horticulture seeds and plants.
In horticulture, new plant varieties — whether it’s a disease-resistant sunflower or a more flavorful tomato — are more than just the result of careful breeding. They represent innovation and creativity. These new plant varieties can be protected through plant patents, utility patents, and/or plant variety protection certificates, each crucial tools that ensure breeders can safeguard their work and continue advancing the industry.
The seed industry needs partners in the legal world to push the process through.
“Plant patents, utility patents, and plant variety protection certificates are each vital tools,” says Bree Vculek, associate in the Biotechnology & Chemical Practice Group at Sterne, Kessler, Goldstein & Fox. “They give breeders various legal frameworks to protect their inventions, ensuring that years of work aren’t replicated or misused by others.”
The Power of Protection
Each form of intellectual property protection for plants doesn’t exist in isolation. “What many people don’t realize, is that plant patents, utility patents, and plant variety protection certificates can work in tandem,” Kessler’s Biotechnology & Chemical Practice Group director Gaby Longsworth explains. “They’re not mutually exclusive; rather, they can complement each other, encouraging innovation across the horticulture industry.”
For instance, while plant patents protect asexually reproduced plants, utility patents can cover asexually or sexually reproduced plants, genetically modified plants, algae, bacteria, fungi, genes, proteins, specific traits, or specific methods of making or using the plants, etc. Plant variety protection certificates, on the other hand, can include sexually and asexually reproduced plants, including tuber-propagated plants, and industrial hemp with <0.3% THC.
“In some instances, it’s like a three-legged stool,” Longsworth says. “There are cases where all three protections are used to provide full coverage of exclusivity for plant innovation.”
Obtaining Intellectual Property Protection for Plants
Securing intellectual property protection for plants is a detailed and meticulous process.
“The application requires more than just a pretty picture,” Longsworth says. “To apply for a plant patent, for example, inventors must submit a thorough botanical description, including the plant’s genus, species, and distinctive traits. This ensures the uniqueness of the plant is well-documented and protected.”
Once filed, the plant patent and utility patent applications undergo rigorous review at the U.S. Patent and Trademark Office (USPTO), ensuring that the plant is truly novel and distinct.
A plant patent application encompasses various elements, including a detailed botanical description, photographic evidence, and a comprehensive claim drawn to the plant as a whole. Factors such as genus and species, growth habits, cultivar name, and distinctive botanical characteristics all contribute to the completeness of the botanical description, ensuring a robust defense of the inventor’s intellectual property rights. The grant of a plant patent from the U.S. Patent and Trademark Office (USPTO) includes the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant, or any of its parts, or from importing the plant into the United States.
The requirements for utility patents include utility, novelty, non-obviousness, written description and enablement and the grant of a utility patent from the USPTO gives the patentee the right to exclude others from making, using, offering for sale, or selling the invention throughout the U.S. or importing the invention into the U.S.
Separately, a similar rigorous review process occurs at the Plant Variety Protection Office (PVPO) of the United States Department of Agriculture (USDA) when it comes to plant variety protection certificates. Upon receiving applications, the PVPO examines them to establish that the varieties are new, distinct, uniform and stable. Applicants must complete all application forms, provide a variety name that does not conflict with an existing name for the crop, and deposit seeds or tissue cultures of sexually reproduced plants (for asexually reproduced plants, samples are to be maintained by the applicants themselves and need not be deposited).
Plant variety protection certificate owners have the right to exclude others from selling, marketing, reproducing, importing or exporting the protected variety for 20 years (25 years for trees and vines) from the issuance of the certificate.
The Business of Botany
For horticultural businesses, intellectual property protections offer not just protection but a competitive edge.
“Developing a new plant variety is expensive,” Vculek says. “Without the intellectual property protection, there’s nothing stopping competitors from copying your work and selling it as their own.”
The protection provided by a plant patent, utility patent, and/or plant variety protection certificate lasts for 20 years from the filing date, offering breeders and companies a lengthy period of exclusive rights to reproduce and sell their creations.
Vculek says it’s a small price to pay for safeguarding years of research and development. Intellectual property protection gives companies the confidence to invest in long-term projects, knowing the work is protected.
Subhead: Cultivating the Future
As the horticulture industry continues to evolve, various forms of intellectual property protections for plants will remain a key driver of innovation.
“The future of plant breeding is incredibly exciting,” Vculek continues. “With the intellectual property protections offered for plants, breeders can focus on creating new varieties that will not only beautify our world but also contribute to agricultural sustainability and resilience. With these protections in place, the next great plant variety is just around the corner.”
Callout:
“Developing a new plant variety is expensive, Without the intellectual property protection, there’s nothing stopping competitors from copying your work and selling it as their own.” Bree Vculek
Captions:
Headshots, the name is the filename
Gabby Longsworth
Bree Vculek
