Patents International Legally speaking
Q: What is the difference between a plant patent and a utility patent on a plant?
A plant patent only has one claim, and only protects one cultivar of asexually-reproduced plant and its parts. In contrast, a utility patents can have numerous claims and can cover either asexually-propagated or seed-propagated plants, as well as products made from the plants, methods or cultivation, progeny, an numerous other things—anything that is new and non-obvious.
Q: Is it true that the USPTO only recently started granting patents on Cannabis-related inventions?
No. The USPTO has been granting patents on Cannabis-related inventions since at least the 1940s. Check MJPatentsWeekly.com
Q: What is the difference between a cultivar name and a trademark?
A cultivar name is considered generic, meaning that anyone can use it—it is the “correct” name for the plant. The trademark is the commercial name for the plant—the name under which the plant is sold and which would require a license and royalties to use. So be careful not to use the trademark when asked to provide the cultivar name because when you designate the cultivar name, you’re telling the world “this is the generic name for the plant—you can use it without a license.”
Q: Do I need DNA information to apply for a plant patent?
No. You may eventually want it to prove that someone’s plant is infringing your patent, but you definitely DO NOT need it to apply for a plant patent.
Q: How long does it take to get a plant patent?
Typically about 18 months.
Q: What if I want to protect a seed-propagated cultivar?
In the US, seed-propagated cultivars are protected through the USDA under the Plant Variety Protection Act. You can also seek utility patent protection, as discussed in this post.
Q: How much information do I need to have before I can file a plant patent?
Surprisingly, very little. In contrast with utility patents, you can add more disclosure after filing a plant patent, without losing your filing date. In fact adding more disclosure to describe the cultivar in greater detail than in the original filing is exactly what the examination process is all about. So the original filing can be very basic—a photo, a cultivar name, a description of the cross that produced the cultivar and some basics of its key features and that would definitely be enough to file. The rest can be supplied later.