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Plant patents provide a very important tool for people, companies, and universities to protect each new variety of plant they develop.  Plant patents protect the developer’s exclusive control over asexual propagation of the new variety. For information about the effort that goes into developing a new plant variety, and the importance of plant patents, click here.

So if you have a plant variety that you want to patent, how do you do it? What do you need?

First, you need to name the variety. To do so, you give the variety a “generic name.” This is NOT the same as the trade name you intend to use for the variety. Do not use the attractive, commercial trade name in the plant patent application. For more on why it is important to avoid that mistake, click here.

A good generic name is one that makes it easy to identify the variety but that won’t even try to double as a trade name. If your name is Mary Smith, and this is a Cannabis variety that was originally bred in 2015, and you are patenting the third selection from 2015, the name could be something like MScann15-3 (Mary Smith Cannabis 2015, third selection).  Pick a naming convention that works for you and that you can keep using for all the varieties you might patent. Some breeders name their selections as soon as they show some promise and then only patent a few of the named selections. It’s all about record-keeping and what works for you.

In addition

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By Dale Hunt – The opinions expressed here are the author’s own and do not necessarily reflect those of his professional colleagues or his clients.  Nothing in this post should be construed as legal advice.  Meaningful legal advice can only be provided by taking into consideration specific facts in view of the relevant law.

Since I live and work in the US, my blog is obviously US-centric.  However, I have helped plant breeders in many different countries obtain IP protection for their cultivars all over the world.  In the US, protection for plant cultivars can be in the form of plant patents, utility patents, and/or USDA PVP registrations.  In the rest of the world, the IP protection is more uniform, and is generally referred to as Plant Breeders’ Rights (PBR) or, less commonly, Plant Variety Rights (PVR).

Plant Breeders’ Rights through UPOV in Nearly 100 Countries

In almost all countries where such rights are available, they arise under a mostly-standardized system known as UPOV (Union internationale pour la protection des obtentions végétales, or International Union for Protection of New Varieties of Plants). There are currently 75 members of UPOV, most of which are individual countries but some of which are groups of countries — like the European Union (28 member states) and the African Intellectual Property Organization (17 member states).  Most of the EU countries are also separately members of UPOV, so the total number of countries that participate in UPOV — individually and/or through a regional authority — is currently 94.  You can check the current membership of UPOV here.

This post is primarily for Cannabis breeders and mainly for Canadian breeders who are interested in protecting their

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By Dale Hunt – The opinions expressed here are the author’s own and do not necessarily reflect those of his professional colleagues or his clients.  Nothing in this post should be construed as legal advice.  Meaningful legal advice can only be provided by taking into consideration specific facts in view of the relevant law.

My thanks to Eric Lundgren, JD, for helpful input on this post.

Although I have degrees in botany and plant genetics and have worked with plant breeders for 20+ years, I recently learned that I have been sloppy in my use of plant-breeding terminology.  Part of that comes from the fact that the truly geeky among us (the professors who make the rules) sometimes change the rules without telling the rest of us.  Part of it just comes from learning by hearing, rather than digging-in and looking up the actual rules.  Which, being a lawyer, is something I would never do in other parts of my job.  So this post is my effort to clean up my act as far as terminology goes, and to provide an update to anyone else who has questions about these things.

If you already know this, please skip to any other blog post on this site.  This is going to be way too basic for you.  But since I’m quite fascinated by how much sense this terminology makes, and also by the fact that I didn’t fully appreciate it until now, I’m going to “geek out” on it here.  So read on, or click back to more interesting topics, as you will.

Cultivar is Most Correct, but Why?

Let’s start with the “right” word: cultivar.  It is a portmanteau or, as my kids would call it, a mashup, of the words “cultivated variety.”  A cultivar is a group of cultivated plants that all share the same character or characters that are consistently inherited within the group.  This means that the cultivar is defined by the phenotype, and not specifically by the genotype.  In other words,

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By Dale Hunt – The opinions expressed here are the author’s own and do not necessarily reflect those of his professional colleagues or his clients.  Nothing in this post should be construed as legal advice.  Meaningful legal advice can only be provided by taking into consideration specific facts in view of the relevant law.

Special thanks to TeePublic.com for use of the image at the top of this post.

Perhaps you read the blog post about copyrighting a plant variety (via a patent) and thought, “If only that were enough.”  Some kinds of plants cannot be propagated by cloning on a commercial scale.  And there are some sets of traits that can be easily transferred by seed propagation, or transferred to other lines with one or more straightforward crosses.  So in these cases, a form of protection that only prohibits direct copying just can’t fully protect what is special about the cultivar.  In other words, a plant patent isn’t enough.  This is because US plant patents only cover asexual propagation – direct cloning of the original plant.  If the commercial value can be derived without cloning, then a plant patent won’t protect the main commercial value.

Fortunately, there are two approaches to filling this gap in protection:

  1. USDA Plant Variety Protection is generally the most inexpensive and direct but is not available for all genera of plants.
  2. US Utility Patent Protection is also available and, when handled properly, need not be unduly expensive, complicated, or over-reaching.

USDA Plant Variety Protection

When seed-propagated plant cultivars need to be protected, the available form of protection in the US is a USDA Plant Variety Protection (PVP) Certificate.  The application process is relatively straightforward – it requires

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By Dale Hunt – The opinions expressed here are the author’s own and do not necessarily reflect those of his professional colleagues or his clients.  Nothing in this post should be construed as legal advice.  Meaningful legal advice can only be provided by taking into consideration specific facts in view of the relevant law.

PLANT PATENTS ARE SURPRISINGLY SIMILAR TO COPYRIGHTS

You’re a plant breeder.  You have a great cultivar that you want to propagate and sell.  You would really like to put it out there so that all your hard work could pay off and so that everyone could enjoy how great your cultivar is.  Of course, you don’t want to sell one plant and then have the buyer of that one plant become your competition by using it to make and sell numerous clones.  You want to be the only one who can sell clones, or you want people who sell clones to have to do so with a license and pay you royalties.  Seems fair, right?

Copyright owners do something similar all the time — authors and artists create things like books and movies and songs.  Then, if people use what the authors and artists created by making copies of their books or playing their songs, (1) they can only do so with permission, and (2) they must pay a fee for doing so.  Copyrights protect against unauthorized copying of an original work and assure that the originator of the work can derive some benefit from his or her creation.

Something that most people (even most patent attorneys) do not know is that plant patents are very much like copyrights for plant cultivars.  Plant patents only cover exact genetic copies (asexual clones) of the patented cultivar.  They do not protect sexual progeny (plants grown from seeds) or plants that are merely similar to the patented cultivar.  So, in that way, a plant patent is essentially a copyright on a plant cultivar.

When people think of a patent,

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By Dale Hunt – The opinions expressed here are the author’s own and do not necessarily reflect those of his professional colleagues or his clients.  Nothing in this post should be construed as legal advice.  Meaningful legal advice can only be provided by taking into consideration specific facts in view of the relevant law.