This chapter provides an overview of plant patents. Note that these patents will only be granted for certain plants. One of the major criteria for a plant patent is that the plant must reproduce asexually. Asexual plants are reproduced by making a cutting, layering, grafting, or inarching. In addition, claims for plant patents will not be granted for a new variety of fruit or flower, only for a new and distinct variety of plant.

This chapter will probably not be tested at all, but it is possible to see one general question pertaining to plant patents on the exam.

1601 Introduction: the act, scope, and type of plants covered

35 U.S.C. 161 Patents for plants.
Whoever 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, may obtain a patent therefor, subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for plants, except as otherwise provided.

whoever 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) may obtain a plant patent

plants capable of sexual reproduction are not excluded from consideration if they have been asexually reproduced in the past:
a plant reproduced by seeds cannot be patented, unless it was initially asexually reproduced

asexually propagated plants are those that are reproduced by means other than from seeds, such as by the rooting of cuttings, by layering, budding, grafting or marching

the definition of a tuber:
the short, thickened portion of an underground branch
examples of plants that fall into the tuber propagated category:
Irish potato and Jerusalem artichoke

tuber propogated plants are not patentable even though they reproduce asexually
this is because they are propagated by the same part of the plant that is sold as food

all plants are patentable except:
bacteria
those that are tuber propagated
plants that are not invented or discovered in a cultivated state and asexually reproduced

plants that are not obvious

1603 Elements of a plant application
an application for a plant patent consists of the same parts as other applications

only one copy of the specification is necessary (in the past, the PTO required two)

if the drawings or photographs are in color, two copies of the drawings or photographs are required

1607 Specimens
specimens need not be submitted unless the examiner requests them 1610 The action

the language of the claim must refer to a "new and distinct variety of plant" absolutely no claim should be directed toward a new variety of flower or fruit

the specification should not include statements with laudatory expressions (prettier roses, etc.) or statements referring to the character and quality of the products made from the fruit

1612 UPOV convention
In many countries, new plant varieties are protected by breeders' rights laws rather than patent laws. The UPOV Convention attempts to make the process of gaining Intellectual Property rights on plants uniform across the member countries.

both national treatment and the right of priority have been accorded to foreign plant breeders since enactment of the plant patent law in 1930

the UPOV Convention does not apply to the protection of sexually reproduced plants under the Plant Variety Protection Act

UPOV Convention, Article 13:
requires that the proposed variety name must be different from other names used in the U.S. or other UPOV member countries for the same or closely related species
the proposed name must not mislead the consumer of the characteristics, value or identity of the patented plant
the name proposed in one UPOV country must be the same as the name registered in another UPOV member country

an application for a plant patent may rely upon an application for plant breeder's rights filed in a WTO member country (or in a foreign UPOV Contracting Party) for priority under 35 U.S.C. 119(a) through (c)