Читать книгу Intellectual Property Law for Engineers, Scientists, and Entrepreneurs - Howard B. Rockman - Страница 61

Plant patents are granted to one who invents or asexually reproduces any distinct and new variety of plant, including cultivated spores, mutants, hybrids, and newly found seedlings, other than a tuber‐propagated plant or a plant found in an uncultivated state.

Asexually propagated plants are those that are reproduced by means other than from seeds, such as by the rooting of cuttings, by layering, budding, grafting, inarching, etc. With reference to tuber‐propagated plants, for which a plant patent cannot be obtained, the term “tuber” is used in its narrow horticultural sense as meaning a short, thickened portion of an underground branch. Examples of plants covered by the term “tuber‐propagated” are the Irish potato and the Jerusalem artichoke.

An application for a plant patent consists of the same parts as other applications: specification, claim, and illustration. The term of a plant patent is 20 years from the date on which the application for the patent was filed in the United States, or, if the application contains a specific reference to an earlier‐filed application, 20 years from the date the earliest application was filed.

The specification of a plant application should include a complete, detailed description of the plant and its characteristics that distinguish the new plant over related known varieties, and its antecedents, expressed in botanical terms in the general form followed in standard botanical textbooks or publications dealing with the varieties of the kind of plant involved (evergreen tree, dahlia plant, rose plant, apple tree, etc.), rather than a mere broad, non‐botanical characterization such as commonly found in nursery or seed catalogs. The specification should also include the origin or parentage of the plant variety sought to be patented, and must particularly point out where and in what manner the variety of plant has been asexually reproduced. The Latin name of the genus and species of the plant should be stated. Where color is a distinctive feature of the plant, the color should be positively identified in the specification by reference to a designated color as given by a recognized color dictionary. Where the plant variety originated as a newly found seedling, the specification must fully describe the conditions (cultivation, environment, etc.) under which the seedling was found growing, to establish that it was not found in an uncultivated state.

A plant patent is granted on the entire plant. It therefore follows that only one claim is necessary, and only one is permitted.

The oath or declaration required of the applicant for a plant patent, in addition to the statements required for other patent applications, must include the statement that the applicant has asexually reproduced the new plant variety. If the plant is a newly found plant, the oath or declaration must also state that the plant was found in a cultivated area.

Plant patent drawings are not mechanical drawings and should be artistically and competently executed, disclosing all the distinctive characteristics of the plant capable of visual representation. When color is a distinguishing characteristic of the new variety, the drawing must be in color. Two duplicate copies of color drawings must be submitted.

Specimens of the plant variety, its flower or fruit, are not submitted, unless specifically requested by the examiner. Plant patent applications may be published pursuant to Title 35, U.S. Code, Section 122(b). A plant patent application is the only type of patent application filed with the USPTO that is not permitted to be filed electronically.

The Plant Variety Protection Act (Public Law 91577), approved December 24, 1970, provides for a system of protection for sexually reproduced varieties, for which protection was not previously provided, under the administration of a Plant Variety Protection Office within the U.S. Department of Agriculture.

Plant patents are quite important to the agricultural industry in the United States, as well as the flower industry. For example, there has been controversy between the manufacturers of patented seed corn and the farmers who raise seed corn using the patented seeds, who then take the results of that crop and plant the seeds themselves for their new crop. The courts have held that the patent was enforceable, and that the farmers could not use the patented seed to plant their next years crop without obtaining a license. See: Bowman v. Monsanto, 569 U.S. 278(2013).