A plant patent is granted to the inventor who has invented or discovered and asexually reproduced a distinct and new variety of plants, other than a tuber propagated plant or a plant found in an uncultivated state. The grant, which lasts for 20 years from the date of filing the application, protects the inventor's right to exclude others from asexually reproducing, selling, or using the plant s or reproduced.

Inventorship

An inventor is any person who contributed to either step of invention. If one person discovers a new and distinct plant and asexually reproduces the plant, such person would be a sole inventor, but if one person discovered or selected a new and distinct plant, and a second person asexually reproduced the plant and ascertained that the clone(s) of the plant were identical to the original plant in every distinguishing characteristic, the second person would properly be considered a coinventor. However, an inventor can direst that the step of asexual reproduction be performed by a custom propagation service or tissue culture enterprise and those performing the service would not be considered co-inventors.

The Rights Conveyed By the Pant Patent

Grant of a patent for a plant precludes others from asexually reproducing or selling or using the patented plant. A plant patent is regarded as limited to one plant, or genome. A sport or mutant of a patented plant would not be considered to be of the same genotype, would not be covered by the plant patent to the parent plant, and would, itself, be separately patentable, subject to meeting the requirements of patentability. A plant patent expires 20 years from the filling date of the patent application. As with utility applications, when the plant patent expires, the subject matter of the patent becomes public domain.

Limitations

The plant patent must also satisfy the general requirements of patentability. The subject matter of the application would be a plant which developed or discovered by applicant, and which has been found stable by asexual reproduction. Where doubt exists as to the patentability of a specific plant, a qualified legal authority should be consulted prior to applying to assure that the plant satisfies statutory requirements and is not exempted from plant patent protection.

It is common that a patent issued, for example, by the U.S. Patent Office assures validity of the patent. The validity of any issued patent can be challenged right up to the highest court in the land during the life time of the patent.

Alternatively, prima facie, if a patent is invalid due to its not satisfying any one or more of the basic pre-requisites of novelty, inventiveness or utility, it can be ignored or infringed with the onus of the challenge transferring to the patent owner. There should be an integrated strategic approach to protect the bio-assets of developing countries through globally accepted formal and informal protection regimes.

Ag.
Technologies
(Seeds)