Plant Variety

A plant patent is a grant by the government to the inventor who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state.  This grant provides the plant patent owner the right to exclude others from asexually reproducing the plant and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plants or its parts into the United States. The purpose of plant patents is to promote plant breeding, gardening and horticulture.

New and distinct varieties of plants fall into three classes:  sports, mutants and hybrids.  For sports, a new and distinct variety results from bud variation and not seed variation.  A plant or a portion of a plant may suddenly assume an appearance or character distinct from that which normally characterizes the variety or species.  For mutants, the new and distinct variety results from seedling variation by self-pollination.  For hybrids, the new and distinct variety results from seedlings of cross-pollination of two species, of two varieties, or of a species and a variety.

Characteristics that may distinguish a new variety of plant include: growth or flowering habit; immunity to disease; resistance to cold, drought, heat, wind, or soil conditions; color of flower, leaf, fruit or stems; flavor; productivity, including qualities in fruits; storage qualities; fragrance; form; and ease of asexual reproduction.  Asexual reproduction is the propagation of a plant by such means as tissue culture propagation, grafting, budding, cuttings, layering, division, and the like, but not from seeds which is the sexual process.

Lewis Roca Rothgerber Christie can assist clients with the preparation and prosecution of plant patent applications in the United States and abroad.  Besides plant patents, rights for plants  can also include utility patents depending on the scope of the invention such as new  breeding or growing processes.  Foreign rights such as Uniform Plant Variety (UPOV) can also be obtained.  The firm can also assist with the licensing of patent rights in plants and the enforcement (or defense) of plant patent rights through litigation.

Our firm can assist clients with the selection, clearance and registration of trademarks for new plant varieties and well as existing varieties in the United States and worldwide.

We service clients in the horticulture space including breeders, growers, and nurseries; as well as in the gardening and landscaping space.

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Gregory S. Lampert
Gregory S. Lampert