Plant Patents

Here’s something sort or random that I wonder about from time to time.  Why do we have a separate category of plant patents?  In other words, is there any good explanation for why a separate statute governing plant patents was enacted, and is there any valid reason for treating plants differently from other utility patents?  It is a curiosity in that we use the same patent requirements for all other functional inventions.  (Design patents are distinct and have their own issues, but leave that aside).  Plant patents are probably an inadequately theorized subject, for anyone who is looking for a topic.


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3 Responses

  1. I don’t know if this qualifies as a “good explantion” or a “valid reason,” but…

    * Historically, the Patent Office refused to grant utility patent protection to *any* living organism, deeming all such to be products of nature. That rule has been softened in recent decades (see, e.g., Diamond v. Chakrabarty, 447 U.S. 303 [1980]), but those changes came well after the Plant Patent Act of 1930.
    * It has been argued that a new distinct variety of plant is not susceptible to being described in the same way as other inventions so as to satisfy the written description requirement of 35 USC section 112. So under the Plant Patent Act, the written description of the plant need only be “as complete as is reasonably possible” or some such.
    * Plant patents allow for a quicker, cheaper, less complicated process of patent prosecution in exchange for less patent protection, e.g., the doctrine of equivalents does not apply with plant patents, and the sexual reproduction of claimed plant material is not infringing activity (since plant patents cover only asexual reproduction).
    * FWIW, new plants can be protected by regular utility patents, see J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, 534 U.s. 124 (2001), provided they meet all the normal requirements of utility patents (usefulness, written description, enablement, etc.).

    The persistence of plant patents may be historical inertia, a relic of pre-Chakrabarty rules and precedent. As a theoretical matter, they may not make much sense, except as a form of reduced-protection-on-a-reduced-showing.

  2. Shag from Brookline says:

    What we need is to establish “Plant Parenthood” chapters throughout the 50 states to educate farmers and consumers to assure that plant patent royalties will not consume the increasing income inequality gap.

  3. Gerard Magliocca says:

    Thanks Paul. That’s quite helpful.