Plant Patents

Why let others to enjoy the ‘fruit’ of the new variety of plant you have just discovered? Get it patented soon and acquire the profits of your hard work.

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Plant Patents

Generally, a patent is a legal document granted by the government giving an inventor the exclusive right to make, use, and sell an invention for a specified number of years. The purpose of the patent system is to encourage inventors to develop the state of technology by granting them special rights to benefit from their inventions.

Plant patents are, as you guessed by now, about plants. As in, those living, growing, and beautiful organisms that cover this green earth. Plant patents are usually given to the people who have invented a new plant hybrid. Additionally, it is also given when a new variety of plants has been discovered, and the person has successfully been able to reproduce it. We may wonder how every plant is patented. Coming to the point, not every plant is patented. For instance, the patent office will not issue a patent for a tuberous plant. The maximum duration of the plant patent is twenty years.

A plant is considered by the patent and trademark office as being a living thing that has its own natural composition. The natural composition of a plant is made possible by the genes the plant possesses. These genes can be reproduced in an asexual capacity, enabling the genes to be transferred to daughter plants.

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What types of plants are granted for patents?

The most natural forms of plants granted patents are mutants, hybrid plants, and plants that have felt a type of transformation. A mutant plant can be formed by one of two sources that are discovered naturally, or created. Moreover, the plant can be alga or a macro fungus, but bacteria do not qualify.

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

In India, according to the Patent Act of 1970, an application for a patent may be obtained by the actual inventor of the invention or an administrator of the right to make an appeal or a legal representative of either. It is the person who first applies for a patent who is designated to the grant. A prior inventor of the invention who applies consequently will not get the patent as against the first applicant.

A person who has merely described the idea to another, who gave practical shape to the idea and emerged the invention, cannot claim to be the first and true inventor. A foreign national citizen abroad is not prevented from producing an application and acquiring 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

An application for a patent in the prescribed form along with the prescribed payment should be filed in the relevant office of the patent department. An application is expected to be filed according to the territorial borders where the aspirant or the first-mentioned candidate in case of joint aspirants for a patent habitually resides or has a residence or has a place of business or the place from where the design started. If the applicant for the patent or party in a process holding no business places in India, the suitable office will be according to the address of service in India provided by the applicant or party in a proceeding.


How to determine a plant is suitable for patenting?

  • The plant should be unique from any other plant in existence. There must be at least one difference in its composition or production. When relating the plant with the other plant which is approximately similar, they must have at least one different thing regarding the plant.
  • The plant must be new. It can be considered new either by having been created in a nursery or greenhouse or a unique one because of its discovery nature.
  • The newly discovered plant that is created by an individual can enter into the patent application process if the person who first discovered or created it.
  • During the plant patent application, other people in the plant industry must not have thought of it as an obvious invention.
  • The plant should not be previously sold before the patent application.
  • The plant should not be available to the public for more than one year before the patent application. This one-year limitation includes the sale of the plant, but also the description of the plant in a publication, such as botany journal.

How to check the quality of the applicant for a plant patent?

  • Initially, to check the quality of the plant, the applicant should have successfully reproduced the plant through asexual methods.
  • Moreover, asexual reproduction produces individuals that are genetically identical to the parent plant.
  • For instance, the patent office considered being asexual reproduction in plants include bulbs, grafts, runners, cuttings from roots, plants created in the layering process, or corms.
  • Other than using photographs, some people seeking plants use regular coloured drawings to show the Patent Office the plant they are describing. They can also prefer some professional artist to produce these drawings for them.
  • In this aspect, plant patents possess both segments to design and utility patents.

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

It is used to provide information compared to patent applications filed in other countries for the prevailing invention. You would undertake that you will be retaining the patent office notified in writing the details concerning identical applications for patents registered outside 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.

Frequently asked questions

The charge of filing a patent application in India, for an individual is Rs. 1750/- and call for inspection is Rs. 4400/- for paper filing, whereas for filing in online it is Rs. 1600/- and Rs. 4000/- respectively, but the applicant must have a digital signature or an impression to do that.
The patent provides the patent owner the right to eliminate others from making, handling, selling or importing the invention. The patent holder's power to make their creativity is dependent upon the rights of others and whatever general laws might be relevant.
Unlike a patented plant, if you buy a trademarked plant, you can propagate it asexually by taking cuttings. You can even sell the propagated plants for profit, but you can't call those plants by the trademarked name or acquire your trademark for those plants.

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