A Plant Patent is a right granted by the United States Patent and Trademark Office (USPTO) which allows a patent owner to exclude others from propagating the patented variety, or from selling or using it, or any of its parts throughout the United States. The individual who bred or discovered the new variety is known as the Inventor and a patent application requires the inventor to sign a Declaration as such.
While some countries call this type of protection Plant Variety Rights (for sexually reproduced plants), both forms of protection are generally the same and the application process is nearly the same. The application process includes a detailed survey of the plant's characteristics and the questions vary greatly among different countries. In general, however, many countries try to follow the guidelines of UPOV, the International Union of New Plant Varieties.
The following information is published by the United States Patent and Trademark Office :
"A plant patent is granted by the Government to an inventor (or the inventor's heirs or assigns) who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. The grant, which lasts for 20 years from the date of filing the application, protects the inventor's right to exclude others from asexually reproducing, selling, or using the plant so reproduced."
"Asexual reproduction is the propagation of a plant to multiply the plant without the use of genetic seeds to assure an exact genetic copy of the plant being reproduced and would include but may not be limited to rooting cuttings, grafting and budding, apomictic seeds, bulbs, division, slips, layering, rhizomes, runners, corms, tissue culture, and nucellar embryos."
"Grant of a patent for a plant precludes others from asexually reproducing or selling or using the patented plant. A plant patent is regarded as limited to one plant, or genome. A sport or mutant of a patented plant would not be considered to be of the same genotype, would not be covered by the plant patent to the parent plant, and would, itself, be separately patentable, subject to meeting the requirements of patentability. A plant patent expires 20 years from the filing date of the patent application. As with utility applications, when the plant patent expires, the subject matter of the patent becomes public domain."
The Plant Patent system is unique to the United States. Other countries offer Plant Breeders' Rights (PBR) protection for plant breeders.
A trademark may be used for certain plant varieties. In these cases, the name (rather than the plant) is trademarked and is indicated so by "TM" or a ® symbol. A trademark is not intended to be used for prohibiting the propagation of a plant. Only a patent can control (permit or exclude) the propagation of a plant variety.
For further information regarding Plant Patents, Breeder's Rights, and Trademarks, refer to The Hostapedia (pages 25-28) and the PlantHaven website at http://www.planthaven.com/pdfs/PatentFAQ.pdf .
A plant patent has been applied for (PPAF) or granted for the following hosta cultivars:
'Diamonds are Forever' - 'Diamonds are Forever' is the registered name. However, 'Diamonds Are Forever' (upper case "A") is the patented name.
'Eclipse' - 'Eclipse' is the registered name. However, 'ECLIPSE' (all upper case letters) is the patented name.
'El Niño' - 'El Niño' is the registered name. However, 'El Nino' (without the tilde) is the patented name.
'Lady Guinevere' is the registered name. However, it is spelled 'Lady Guineverre' on the patent.
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