International plant breeders rights Archives

Cannabis IP – Why the USPTO is Friendly to Patents and Hostile to Trademarks for Cannabis

FICTION AND FACTS ABOUT CANNABIS & THE USPTO

A Juicy Conspiracy Theory That Doesn’t Want To Die

Maybe you have heard conflicting and confusing stories about Cannabis intellectual property (IP) and the federal government. Maybe they don’t make any sense or are even hard to believe. There are certainly some strange stories out there.

One of my favorites is a conspiracy-sounding story/question I actually hear and have to disprove quite frequently. It goes like this: The US government holds “The Patent” on Cannabis and that’s why nobody else can patent it.

Friends, that’s not correct; not even close. The kernel of truth in this story is that there are several dozen Cannabis-related issued patents and patent applications that list the United States government as owner or co-owner. In these patents and applications, research was done at some government agency – most commonly the Department of Health and Human Services, but also at Energy, Agriculture and even the Navy – and, in someone’s view, the research ended up being worth patenting. So, these approximately 50 patents and applications are among the now-nearly 11,000 such Cannabis-related patents and applications in the MJPatentsWeekly.com collection. So much for the government-monopoly myth;

it’s a myth, plain and simple. Now you know… tell your friends.

Here’s a True Story That Is Puzzling At First

But here’s a strange story that really is true: The single government agency in charge of granting two major kinds of federal IP protection – the United States Patent and Trademark Office (USPTO) — treats Cannabis in completely opposite ways when it comes to patents vs. trademarks. That might seem crazy, irrational, maybe less believable than the government monopoly story I just debunked in the previous paragraph; however, it’s true and there’s actually a reason so simple that this won’t be a very long post.

As demonstrated above, the USPTO loves Cannabis patents. It has been granting Cannabis-related patents since the 1940s at least — if you don’t believe me, go to MJPatentsWeekly.com and search words such as abrading or marihuana (with an ‘h’). Those will take you back to some old patents. But try filing a trademark application for anything that hints at a connection with a real Cannabis product and wait for the 99 questions you will get from the trademark examining attorney.

So why this big difference in treatment? It’s actually simple: it’s a matter of the very different laws that define the requirements for getting a patent vs. those for getting a trademark. And, when the USPTO applies those laws as written, these two extremely different outcomes follow.

Patents are For Inventions that Are New and Not Obvious – That’s It

The patent statute is quite clear in defining what it takes to get a patent. Without getting lost in a lot of other requirements irrelevant to this comparison, the key requirements are that, when someone claims to have invented something, the patent examiner’s job is to compare the claimed invention to what was known before (referred to as the ‘prior art’) and determine whether the claimed invention is new and whether it is obvious. If the invention is new and non-obvious, it qualifies for a patent. Notably, the examiner is not in charge of asking whether it is 1) safe, 2) legal, 3) free of other people’s patent rights, 4) clear of any regulatory hurdles, 5) environmentally friendly, 6) politically correct, etc. … you get my point.

Trademarks are For Goods and Services used Commercially Across State Lines (Legally, That Is)

In contrast, the trademark statute has a very different requirement, because federal trademark rights accrue from ‘use in commerce’ – this means use in commercial activity across state lines. You can probably tell where this is going…so long as Cannabis is federally illegal, it will be impossible for ‘use in commerce’ to occur; therefore, it will be impossible for federal trademark rights to accrue. Thus, it is simply not possible for something that cannot legally move across state lines to qualify for a federal trademark. Can’t happen. Period.

So, to put it simply, this isn’t a matter of trademark examiners being mean while patent examiners are nice. It’s merely a matter of logical/legal impossibility in one case (trademarks) vs. issues of illegality being irrelevant in the other case (patents).

So whether that myth about the government conspiracy to “own the MJ patent” will ever die off or not, hopefully this patent/trademark paradox finally makes sense. And it doesn’t seem to stand any chance of changing until the laws change that govern movement of Cannabis across state lines.

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.

February 11, 2019/0 Comments/by Dale Hunt

COMMON BUT VERY AVOIDABLE MISTAKES IN PLANT PATENTING

Protect Those Cultivars, But Do It Right

Plant breeders must devote many years and tremendous effort to develop a new plant variety with strong commercial potential. In order to protect all that effort from illicit copying (propagating), many choose to seek protection under the U.S. plant patent system. There are some common mistakes that many breeders (and attorneys) make when they are first learning how the plant patent system works. The three most common are (1) naming the variety in a way that is incompatible with trademark protection; (2) misunderstanding the flexibility of filing-date and disclosure requirements; (3) incorrectly timing the filing of the application.

Don’t Mess Up Your Trademark Rights

When a plant breeder has spent years, or even a decade, developing a new plant variety and has finally made selections and propagation and gone through all the steps to really confirm that a variety has great commercial potential, it is not uncommon to be thinking almost entirely in commercial terms and to have a favorite “sexy name” for their new and exciting variety. The problem is that the sexy name is going to function as intended — in the capacity of a trademark associated with that variety. Trademarks are great, but the plant breeder also must select a “generic name” for the variety. And the tricky part is that the generic name is, by definition, a name that can be universally used in reference to the variety, without infringing anyone’s trademark rights.

Therefore, it is actually necessary for each commercial variety to have TWO names —

one is the generic name and one is the trade name. This might make sense in the context of trademark law and policy more generally. Trademarks are not allowed to take generic words out of our everyday language and make them the intellectual property of one owner. Nobody could get a trademark on “Light Bulb,” for a light bulb, or “Doorknob,” for a doorknob, and then claim that everyone who used one of those terms was infringing their trademark. No, the people who use those terms are just speaking the language–using the best words the language has for the things they are talking about. That is what a generic term is. So trademarks CANNOT cover truly generic terms.

Now, applying this back to plant varieties, when a breeder designates the generic name for a variety, this is tantamount to saying “this is a name that anyone can use in referring to this variety, without bumping into any trademark rights — this is the best word for the public to refer to this variety.” And by choosing a generic name for a plant variety the breeder is essentially dedicating that name to the public and foregoing any later claim that the name is the breeder’s trademark. On the other hand, the breeder can also pick a trade name that is not the generic name and that the breeder or the owner of the variety has exclusive rights to use so that the public can identify that name with the sourcing quality of the variety.

In my experience as an attorney representing plant patent applicants and applicants for worldwide plant breeders’ rights, I have seen this mistake made more than once. When I have inherited files from a prior attorney or files that were handled by the breeder without counsel, I often see a name that looks like it would be a great trademark, but used in the plant patent application as a generic name; and then I know downstream frustrations will occur or already occurred, when the trademark application for that name is rejected because it is, by definition, a generic name. There are ways to fix this in the U.S., but the problem is an even bigger headache if the mistake is made under the international convention under which most other countries handle their plant variety rights.

Don’t Delay Your Filing Just to Disclose More – You Really Can Add It Later

Another common mistake, especially among applicants and attorneys who are more familiar with utility patents, is a belief that the application must be complete to obtain a filing date, and cannot be changed after the filing date. This is incorrect. It is possible to get a plant patent filing date with relatively little disclosure. For more details about that, click here. Likewise, it is possible, even very common, to add to the disclosure as part of negotiating the allowance of the application. Utility patents have strong prohibitions about adding “new matter” after the filing date, but adding a more complete description of a new plant variety, after the filing date, is not considered new matter, since it does not actually change the underlying thing being described (the plant variety itself). The goal is to describe it as completely and accurately as possible, and it is entirely permissible to file an application with some very basic information about the variety, and then supply more details later.

A variation on this mistake is filing what is intended to be a plant patent application, but filing it as a utility application. This is also something that has happened on some occasions when someone new to the process assumed that the two systems were the same, or were more alike than they actually are. The “formalities” required for plant patents, including fees and inventor declarations, are not the same as utility patent formalities. One of the first Cannabis cultivars that was the subject of an attempt to get a plant patent was originally mis-filed as a utility patent, which caused quite a lot of unnecessary delay and paperwork for the applicant. This is just one of those things someone who hadn’t previously filed a plant patent may not catch the first time around.

This misconception regarding how much you have to disclose to get a filing date can matter when some sort of commercial activities may put the patentability of the variety into question. Suppose a commercial sale of a large order of plants (clones) of the variety is about to be made, but someone has the mistaken notion that they need to have the complete, detailed information about the variety in order to be able to file the application. This would either unnecessarily delay the sale, pending the filing of the complete application, or it would cause the owner of the variety to believe that it is necessary to forego patenting in order to not delay the sale. In reality, it is usually possible (if not ideal) to file a plant patent application within a few days of deciding it needs to be done.

Know Your Deadlines and What Creates Them

This timing issue is a form of the third mistake — not realizing that a plant patent application can be filed even before all of the information that will eventually be required for allowance is available. The other form of the third mistake is filing too early. As noted in this post, developing a new variety takes a long time, and some of that time may involve test-growing the plants in various settings, trialing harvested material, even selling harvested material. If the breeding and commercialization team does not understand what leads to loss of novelty (public availability of asexual propagating material of the variety), and what does not (e.g., sale of harvested material*), the team can make the mistake of filing the plant patent application too early. Why would that matter? Because the patent will expire 20 years after the filing date, so filing no earlier than necessary will result in a longer practical term of protection.

Understanding what is unique about the plant patent system can help plant breeders and companies avoid these and other mistakes. So, to borrow a line from the notorious Christopher George Latore Wallace:

And If You Don’t Know, Now You Know

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.

February 1, 2019/4 Comments/by Dale Hunt

Hemp IP After the Farm Bill: Patenting Your Genetics – Powerful, Affordable Protection

Genetics, Hemp, Marketing, Patenting - Novelty, PBR, Plant Breeding, Plant Patents, Utility Patents

Passage of the 2018 Farm Bill has changed the dynamics of the industrial hemp industry in the US and – probably by extension – worldwide. If you are a hemp breeder or run a seed company and are developing some unique genetics, you may be wondering how you can best structure a nationwide or international business based on selling seeds when the very seeds you sell are capable of undercutting the value of the unique genetics the seeds contain by being reproduced and re-sold in large quantities.

This is where intellectual property rights matter. Without IP rights, every seed-propagated variety would quickly and inevitably become nothing more than a commodity on the open market; it is only by maintaining some type of control over the right to produce and sell the seed that you can recoup the value of your significant efforts to develop the variety in the first place.

You may have heard of plant patents. Unfortunately, US plant patents are only available for asexually-propagated cultivars of plants; so, seed-propagated industrial hemp is not eligible for US plant patent protection. Fortunately, in the US there are two other IP systems that are available for protecting seed-propagated plant varieties:

USDA Plant Variety Protection: this is generally the most inexpensive and direct approach to IP protection, but it is not available for all genera of plants; and
US Utility Patent Protection: another form of protection available which, when handled properly, need not be unduly expensive, complicated, or over-reaching.

USDA Plant Variety Protection
When seed-propagated plant cultivars need protection, the alternative to a plant patent is a USDA Plant Variety Protection (PVP) Certificate. The application process is relatively straightforward – it requires making a seed deposit, paying seed-deposit and filing fees, and filling out some forms that ask questions about the genealogy and selection of the cultivar, its commercialization, traits, and other relevant information. An examination known as “DUS Testing” is conducted to determine the cultivar’s distinctness from other known varieties, the uniformity of the plants within the cultivar, and the stability of the traits of the cultivar across multiple plantings or generations. When all the forms are in order and the DUS examination is satisfactorily completed, a PVP Certificate is granted.

However, There’s a Problem
There is just one problem, which is built into the Plant Variety Protection Act (PVPA). It may not be a problem for everyone, but it will be a problem for some. Under the PVPA, it is allowable for someone to use your protected variety in a breeding program to develop other varieties. So, your genetics can flow into other people’s varieties; maybe that’s inevitable and you’re not concerned. But, if your variety has some very special traits that you worked long and hard to develop and aggregate into one genotype, you might be extremely concerned, and you may be quite reluctant to cooperate with an IP system that affirmatively gives someone else the right to breed with your otherwise-protected variety. In that situation, you would probably like to be able to enforce against it. Fortunately, you do have another option – a US utility patent on your specific variety.

The (Cultivar-Specific) Utility Patent Alternative
The extra-good news is that a cultivar-specific utility patent does not need to have all the negatives that are often associated with utility patents in the minds of many plant breeders and members of the long-term Cannabis and hemp communities. What are those negatives?

High cost;
extreme complications in the preparation/disclosure process; and
patent claims so broad they seem to risk alienating the goodwill of others in the community.

Granted, not everyone is equally concerned about these issues; however, I hear about them often enough that they are worth addressing here.

Utility Patents – They Can Be What You Want Them to Be
Utility patents are often associated with high cost and complexity. In the Cannabis industry utility patents have, to some extent, also become associated with a “gold-rush” type of over-reaching for claim scope that is more than seems reasonable. But, that approach is up to the applicant, and a focused approach to what you seek can also greatly control the cost and complexity of the process.

If the goal is to adequately protect a single cultivar with – or small group of cultivars sharing – a well-defined set of traits, while also protecting their progeny, this goal can be achieved very reasonably with a utility patent. While a plant patent can only have one claim and can only protect against asexual propagation, a utility patent can have multiple claims. For example:

The hemp cultivar known as XYZ, deposited under accession number ABC.
Seed, plants, plant material, plant extracts, or a whole plant of claim 1, or of any progeny thereof.
A method of plant propagation comprising crossing a plant of claim 1 or claim 2 with another hemp plant and recovering seed therefrom.

These are, of course, only simplified examples of the kinds of claims that could be written and are designed to illustrate how a utility patent can cover more than a plant patent.

There are several statutory requirements for patentability, but the key ones at issue here are that:

an invention must be new and non-obvious;

the application must adequately describe the invention; and

the application must enable the public to make and use it once the patent has expired.

The requirement for novelty and non-obviousness (1) would be met by the fact that the cultivar XYZ did not exist prior to being bred and selected by the inventor. The requirements for adequate description and enablement of the invention (2 & 3) are met by making the deposit. So, if all that is claimed in a utility patent is a deposited plant cultivar and certain things closely related to it, the application can be relatively simple and inexpensive. Be prepared, though, to make a deposit and pay a fee to the depository that will be in addition to the fees required by the USPTO and by your attorney.

And If You’re Really in A Hurry
You may need to get seeds shipped right away and don’t have time to develop the full strategy you would like, make all your seed deposits, file your PVP application, etc.; or perhaps you’re not sure which of your cultivars are worth all the trouble. There is one more alternative that will let you get some interim protection in a hurry – without breaking the bank – and make these decisions after you’ve shipped your first harvest and caught your breath.

With the right help, you can file provisional patent applications on your hemp varieties which will give you up to a year to file the actual utility application. This will give you time to decide whether you really want to file the utility application, spend the money on seed deposits, and jump through all the other hoops necessary to fully protect your varieties. But, in the meantime, you will be able to legitimately mark the seeds you sell as “patent pending.”

This is a smart way to maximize your opportunity for protection while minimizing and deferring your costs. However, there are correct and incorrect ways of filing a provisional application to effectively bridge to a later cultivar-specific utility application. If you choose to go this route, be sure you do it correctly so that the filing date you get is effective.

The Rest of the World is Different
The US is unique in dividing its IP protection for plants based on whether they are asexually or sexually propagated. In most of the rest of the world, all plant breeders would go to one plant-variety office to file the same type of application for plant-breeders’ rights, regardless of how their varieties are propagated. In some countries, the breeder may also be able to apply for a utility patent. Unfortunately, in countries where utility patents are not available, the “breeder’s exemption” will make it possible for others to use your genetics to develop their own varieties. The only way to avoid this will be to keep your genetics off the market entirely or to release your seeds only under extremely restrictive contracts to trustworthy parties.

One universal truth, regardless of where you want IP protection, is that if you have a valuable hemp variety, or multiple varieties, on which you want to build a nationwide business, you definitely need to develop a sophisticated IP strategy that will protect the investment you have made in developing the special genetics embodied in the seeds you are preparing to sell. This will help you maintain control over the nationwide or worldwide market for and supply of your seed and maintain a sustainable price, season after season.

Get ready to file PVP applications because the USDA is now accepting them. Prepare to make your seed deposits. Confer with patent counsel who has experience protecting plant genetics and commercializing plant varieties to schedule and budget for this very important aspect of your business. Work with your plant IP counsel to prepare and file provisional patent applications (at least) so that you can mark your seed shipments “patent pending” before they go out the door, and consider also shipping them with conditions attached, depending upon the recipient and the nature of the seeds you are sending.

You don’t need a lawyer to tell you that things have really changed lately and will probably continue to escalate and change. However, it would be a good idea to get some help from a lawyer to make the most of some of those changes.

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.

January 14, 2019/0 Comments/by Dale Hunt

WHAT IS THE PUBLIC DOMAIN?

We Are Free to Use What Is In the Public Domain – It Belongs to Everyone

We’ve all heard of the term “public domain.” But what does it mean and how does it relate to intellectual property? The public domain can be thought of as everything that belongs to the public, rather than to any one person — things the public is free to use without encumbrance, having to pay a fee, or facing risk of a lawsuit. Knowledge gained by academic researchers or long-known to everyone is part of the public domain. We can all use that knowledge without paying anyone a fee. That is public domain. Likewise, the subject matter of an expired patent, or something that was never patented, is also part of the public domain*.

There are other things that are in the public domain that ‘belong’ to the public, such as free use of the language to communicate. Imagine if someone tried to trademark the word ‘joint’ for their marijuana cigarette product saying, “Now this word belongs to me and to my product and, if you use it, I will sue you.” No rational system would permit that, because it would take ‘joint’ out of the everyday vocabulary; that word is part of the public domain.

IP Should Never Take Something OUT of the Public Domain

What about a marijuana plant cultivar that has been

known and used for a long time? Can someone who is newly commercializing it (or something with its properties) successfully patent it or write patent claims that include such a cultivar within the scope of the claims? We are well-aware that people are trying to do just that. Our visceral reaction tells us this is wrong; and it is also rejected by public policy everywhere that patents exist. It should never be possible for a new patent to take something out of the public domain and to restrict its accessibility.

Sometimes people ask what qualifies for a patent, a trademark, or a copyright. The answer is usually somewhat instinctive: it must be something they created; it can’t be something that has already been around for a long time without that person’s contribution. This kind of instinctual analysis inherently reflects a notion that whatever has recently been created and has value is not part of the public domain and could at least, theoretically, belong to one owner. It is a very important part of intellectual property theory that, once something is in the public domain, intellectual property rights should never be allowed to take it back out.

Protecting the Public Domain from Encroachment by Overbroad Patents

This is the reasoning behind banning trademarks on any generic term; it is also the reason for only permitting patents on things that are new. So when a patent examiner is given a new application to review and determine whether the things that are being claimed are really patentable, he or she looks at the “prior art” — which is really just published information about what is already in the public domain. Part of the process of patent examination is to identify whatever in the public domain is closest to what is being claimed as an invention and, if it is too close, the patent examiner rejects the claims. So, in this way of looking at things, the patent examiner is protecting the public domain from encroachment by a patent applicant.

If something has been known, done, sold, or discussed so long and/or so widely that no one can legitimately claim it is still their own unique secret, that’s public domain — even if that thing (whether public, cultural, academic, or commercial) was never published. Of course, in some industries, the actual public domain and that part of it which is published are not very much alike.

The Problem of Public Domain in the Absence of a Detailed Published History

A great example of this is the marijuana industry, in which the lack of publication was associated with the illegality of the activities. Now that the activities are no longer illegal in many jurisdictions and people are applying for patents, the industry is facing this unique challenge. Patent examiners performing their normal search of relevant publications in the prior art have almost nothing to work with. The lack of relevant prior art can result in examiners allowing patent claims that cover public-domain subject matter, because there’s no prior art basis for rejecting claims that are that broad.

On the other hand, people who have been working in the industry for a long time are very well aware of things that were openly known in the industry but that were never published. Therefore, particularly in the situation of marijuana patenting, there is a large disconnect between what is in the ‘real’ public domain and what is in the prior art.

Coming back to the more general concept, the message regarding the public domain is that people really can at least start by trusting their instincts about whether something should be protected by a trademark, a patent, or a copyright. Is it really new, or does it already belong to the public? That’s the question. The answer gives us a good starting point for discussing whether something should be protectable in an intellectual property system.

* For purposes of brevity, I am using the term ‘public domain’ very broadly; there are exceptions and nuances I won’t go into here, since this is a blog and not a treatise.

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.

December 31, 2018/4 Comments/by Dale Hunt

Suppose you are a plant breeder. You know there is significant demand for a table grape that ripens two weeks earlier than anything currently on the market. Who wants to buy grapes imported from half a world away, where the seasons are different, or grapes that have been sitting in storage, if there could be a freshly harvested and locally grown alternative? The market price for the first local grape to ripen would be far above the average price in the middle of the season.

As a grape breeder you have some tools at your disposal. You have some varieties that do ripen early, but they taste bad and they don’t produce much fruit. You also have some varieties that have fabulous taste and are very productive, but that ripen mid-season when prices are lower. There is a lot of value in combining those traits; it’s worth the effort. So, you cross the early variety with the delicious variety. Will all the offspring be early and delicious? Definitely not — especially if there are several genes that each contribute a little bit to early ripening, and several other genes that contribute to the great flavor and the high productivity. You’re shuffling two giant decks of cards and hoping that, somehow, all the cards you want will end up in one hand. Good luck with that. But of course if you shuffle and deal enough times, eventually you’ll get what you’re looking for — maybe just once, maybe a few times.

So, you cross the two kinds of grapes and harvest thousands of seeds (we’re ignoring, for the moment, that you really want seedless grapes;

there are tricks to working with seedless grapes, but that’s for another article). Even though the seeds all came from the same cross, they are each as different as you are from your brothers and sisters; the same two parents can produce a nearly infinite number of possible combinations.

So you plant literally thousands — maybe tens of thousands — of seeds from this cross. You grow them all, but you know you can’t take a close look at all of them. And you know the ones that will be good commercially need to grow fast and be very healthy. So you mercilessly throw out 99% of the new grape plants and keep only those that are really great in terms of health and vigor. If you started with 10,000 seeds, you’re now down to 100 plants. And you know you’re not going to commercialize 100 different varieties, so there’s still a lot of selecting to do.

You start by letting these very healthy plants set fruit, and you watch for it to ripen. Maybe, if you’re lucky, ten or twenty plants will have fruit that ripens early. So you save those and discard the rest. Now it’s time to see if the fruit is any good. One plant has beautiful fruit that tastes horrible; another has delicious fruit but is such a strange color that nobody would ever buy it to learn of it’s great taste.

Again, if you’re lucky, maybe you’ll end up with three or four plants that grow well and make delicious, pretty fruit that ripens early. You might just be onto something. So, you take cuttings from each plant and make 10 new plants from each variety; you need to see if these varieties can be propagated into acres and acres of identical plants that will all do what you want them to do. Maybe one of your varieties doesn’t like to be propagated, so you know you’ll never be able to make thousands of plants exactly like that one. Maybe one can be propagated with cuttings, but the offspring aren’t as vigorous. But, if you’re truly lucky, one of your special plants will be easy to propagate and will be stable and relatively uniform across thousands or tens or hundreds of thousands of plants, and across several generations.

Now, and only now, do you really believe you have something with some commercial value. You grow more of them under different conditions and see what you can learn about the reliability of the ripening and the productivity. You do some market testing to see if people like them.

Can you guess how many years you have invested in this project — in making ONE new variety? It’s been at least five years and maybe ten or more. You put in all that work and finally have something very, very valuable to show for it.

Can you sell the plants to whomever wants to buy them? Remember, these plants were SELECTED to be easy to propagate. If you sell even ONE plant to someone who doesn’t respect your desire to recoup your investment in developing this new variety, that person could easily make tens, hundreds, even thousands of plants without paying you for anything more than the one plant you sold.

BUT, if you could patent that plant — so that nobody could make unauthorized offspring without paying you a royalty — your investment and work over all those years would not be lost.

Nearly a century ago, plant breeders convinced Congress that there was good justification and need for a patent system to protect newly developed varieties of plants. This was precisely because it takes so much time and effort to breed and select a new variety and vastly less time and effort to make illicit copies of it. And so the “plant patent act” was passed and became part of the larger body of patent law that had existed in the United States since the late 1700s.

As you can see, if there were no patent system covering new varieties of asexually propagated plants (plants made from cuttings of parent plants, rather than from seeds), there would have to be some other — probably complicated — ways of protecting plant varieties, or there would be very little incentive to make new varieties.

So this is the WHY. For the HOW, click here.

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.

December 19, 2018/0 Comments/by Dale Hunt

Posts

Cannabis IP – Why the USPTO is Friendly to Patents and Hostile to Trademarks for Cannabis

Hemp IP After the Farm Bill: Patenting Your Genetics – Powerful, Affordable Protection

Patenting and the Public Domain

Dale’s Blog

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