Plant Patents

Why let others relish the ‘fruit’ of your new variety of plants you have just discovered? Get it patented quickly to reap the rewards of your labor.

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Plant Patents

A patent is a legal document that has been authorised by the government and grants an inventor the only authority to create, use, and market an invention for a predetermined period of time. By giving them exclusive rights to profit from their discoveries, the patent system helps to motivate inventors to advance technology.

The focus of plant patents is on plants. Specifically, the gorgeous, vibrant, and alive species that cover the earth. People who have created novel plant hybrids typically receive plant patents. Additionally, it is granted when a new plant variety has been found and successfully reproduced by the individual. We might question why each plant has a patent. Finally, not all plants are protected by patents. The patent office, for example, won't grant a patent for a tuberous plant. The plant patent may be held for a maximum of 20 years.

The Patent and Trademark Office regards a plant as a living item with its natural makeup.

The genes that a plant carries allow for the plant's inherent composition. These genes have the ability to multiply asexually, allowing them to be passed on to daughter plants.

Types of Plants Eligible for Patents

Mutant, hybrid, and transformation-aware plants are the most organic types of plants that are eligible for patents. One of two sources—either one that is made or discovered naturally—causes a mutant plant to develop. Bacteria do not qualify as a plant; however, an alga or a macrofungus may.

Why are Plants Patented?

A plant patent is an intellectual property right that prevents an original or individual plant’s key features from being copied, sold, exchanged or used by others. A plant patent can assist an inventor to acquire higher profits during the patent protection period by preventing opponents from using the plant. Tubers such as potatoes are also not eligible for plant patents, or for plants that are unique only because of growing conditions of soil fertility.

How Does a Plant Patent Work?

A patentable plant can be natural, bred or somatic which is created from non-reproductive cells of the plant. It can be created, invented or discovered, but a plant patent will only be given to a discovered plant if the discovery is done in a cultivated area.

Benefits of Plant Patent

  • Patenting a plant gives you the right to stop others from manufacturing, selling or importing your plant without your permission.
  • Additionally, you will get protection for a predetermined period, allowing you to keep competitors at bay. You can then utilize your invention by yourself.
  • Alternatively, you can license your patent for others to practice it or you can sell it. This can provide important revenue for your business.
  • Indeed, some businesses exist only to assemble the authorities they have licensed perhaps in sequence with a registered design including trademark.

How to File a Plant Patent?

Step 1: Determine the ownership

It is critical to identify who invented or discovered a new plant. There may be several steps required to develop a plant invention, as there may be one or more co-inventors.

Step 2: Determine plant patent eligibility

To get a plant patent, it has to apply in the legal definition of what is protectable. A person can obtain a plant patent if he/she invents them and asexually reproduces any new type of plant, including cultivated sports, mutants, hybrids combination, and newly found seedlings, other than a tuber produced plant or a plant found in an uncultivated state.

It must be sexually reproduced. Simply means that the plant grows without fertilized seeds. It is preferably able to be reproduced without artificial or synthetic means.

Step 3: Determine the patentability

To be patentable, the following must be true about the plant:

  • Eligible: It must have been invented or discovered in a developed state and asexually reproduced.
  • No prior public use or sale: That means that the plant has not been patented, in public use, on sale, or otherwise available to the public before the effective filing date of the patent application with specific conditions.
  • Novel: The plants must not be shown to anyone.
  • Non-obvious: The invention should not have been obvious to one having ordinary skill in the art as of the effective filing date of the claimed plant invention.

Step 4: Draft the plant patent application

The drawings or photographs for showing the most distinctive and novel features. Whatever is stated in the claim language from the needs should be shown in the drawings.

Step 5: Filing of plant patent application

Before applying, all the parts of the plant should be thoroughly observed for at least one growth cycle and any observations or findings should be recorded in detail and submitted along with the application.

Checklist/ Requirement for Filing a Plant Patent Application

  • Cover letter for indicating the list of documents.
  • Application for grant of patent in form 1.
  • Complete/ provisional specification in form 2.
  • Statement and undertaking in form 3.
  • Power of attorney in form 26.
  • Declaration of inventorship in form 5 only for Indians.
  • Request for examination in form 18.
  • Requisite statutory fees (cheque/ DD)
  • Requisite for publication.

Filing a patent in India

The real inventor of the invention, the administrator of the right to appeal, or a legal agent of either may submit an application for a patent in India under the terms of the Patent Act of 1970. The individual who will receive the grant is the one who first applies for a patent. In contrast to the initial applicant, a previous inventor who applies will not be granted the patent.

A person cannot claim to be the original and true inventor if they only described the idea to someone else who then put it into practise and created the creation. It is not impossible for a citizen of a foreign country to submit an application and obtain a patent in India.

Plant Variety Protection Act

The power of plant variety and farmers right Act, 2001 is an Act of the parliament of India that was established to present for the establishment of an adequate system for stability of plant species, the benefits of farmers and plant breeders, and to support the growth and cultivation of new species of plants.

Plant patent application

The appropriate office of the patent department should receive a patent application in the prescribed form and with the authorised fee. According to the geographical limits where the applicant—or the first-mentioned candidate in the case of joint applicants for a patent—habitually resides, has a domicile, has a place of business, or the location from where the design originated, an application is expected to be filed. If the patent applicant or party to a proceeding does not have a place of business in India, the appropriate office will be determined by the address for service in India provided by the applicant or party.

How to Determine a Plant Is Suitable for Patenting?

  • The plant must be different from all other plants on the planet. Its composition or manufacturing must differ in at least one way. There must be at least one difference between the plant and another plant that is roughly similar when comparing them.
  • Plant must be brand-new. It can be regarded as new if it was made in a nursery or greenhouse, or it can be regarded as unique since it was discovered.
  • If the person who first discovered or invented the plant is still alive, they are eligible to participate in the patent application procedure.
  • Others in the plant industry must not have considered it an obvious invention when the plant patent application was being made.
  • Before the patent filing, the plant should not have been sold earlier.
  • Before filing for a patent, the plant shouldn't be accessible to the general public for longer than a year. This one-year period covers both the plant's sale and its description in a publication, such a botany journal.

How to Check the Quality of the Applicant for a Plant Patent?

  • The applicant should have first successfully used asexual reproduction techniques to test the plant's quality.
  • Asexual reproduction also results in offspring that share the same genetic makeup as the parent plant.
  • For instance, the patent office recognised corms, runners, grafts, cuttings from roots, and plants produced through layering as examples of asexual reproduction in plants.
  • Some persons who are seeking plants use ordinary coloured drawings rather than photographs to describe the plant to the Patent Office. They may also opt to have these drawings made by a professional artist.
  • Plant patents are similar to utility and design patents in this regard.

Documents Required for a Plant Patent

  • Application form in duplicate (form 1)
  • The provisional or complete specification in duplicate. If the provisional specification is recorded, it must be supported by complete specification within 12 months.
  • Plant drawing in duplicate, if it is necessary.
  • Abstract of the invention in duplicate.
  • Try listing the number, filing date and current status of each foreign patent application.
  • Priority document in convention application, when delivered by the controller.
  • Declaration of inventorship where the provisional specification is followed by complete specification or in case of the convention.
  • Power of attorney (if filed through the patent agent).
  • Fees (to be paid in cash/ by cheque/ by demand draft.

Form 1: Application for Grant of Patent

  • This application must contain the name and address of the inventors.
  • Name and address of the applicant.
  • Information corresponding to previous patent applications associating to the current invention, which you or any established entity has field, and some statements, among additional knowledge.

Form 2: Provisional/ Complete Specification

Form 2 is used to furnish your patent stipulation. It may be provisional or a complete patent specification depending on the type of patent application you are filing.

Form 3: Report and Undertaking Under Section 8

In order to compare the prevailing invention to patent applications made in other nations, it is used to offer information. You would commit to keeping the patent office informed in writing of any information pertaining to similar applications for patents registered outside of India.

Form 5: Declaration as to Inventorship

This application is used to declare the inventors of the prevailing patent application.

Form 26: Power of Attorney if It Is Filed Through the Patent Agent.

Form 26 is used to specify the power of attorney to the patent agent to deal with the patent application, correspondence and communication on your behalf.

Why Vakilsearch

Due to the complexity of the process and the need for a complete grasp of the legal criteria for obtaining a plant patent, Vakilsearch is here to assist you with quick and hassle-free plant patent registration. For a period of 20 years after the date of the patent application was submitted, the holder of a plant patent has the only right to sell, use, and grow the plant. Our scalable team of experts can guide you through the procedure and ensure the applications are prepared and submitted correctly. In addition, we offer counsel and direction on other legal matters pertaining to plant patents, like licensing and the enforcement of patent rights.

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