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Patent & Trademark Resource Center

New Mexico State University Library houses the state and regional Patent & Trademark Resource Center. Patenting an invention and trademarking a product name can be challenging. PTRC library staff are information experts trained on how to use search tools

What is a plant patent?

Plant patents protect inventors of unique plants

"Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title." - Title 35 United States Code, Section 161

Plant patents look like other patents, except that they also include specimen pictures in color, such as this: 

Plant patent photo example

 

Is my plant patentable? 

To be patentable, it is also required:

  • That the plant was invented or discovered in a cultivated state, and asexually reproduced.

  • That the plant is not a plant which is excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part, as with potato or Jerusalem artichoke;

  • That the inventor named for a plant patent application must be the person who actually invented the claimed plant, i.e., discovered or developed and identified or isolated, and asexually reproduced the plant;

  • That the plant has not been patented, in public use, on sale, or otherwise available to the public prior to the effective filing date of the patent application with certain exceptions;

  • That the plant has not been described in a U.S. patent or published patent application with certain exceptions;

  • That the plant be shown to differ from known, related plants by at least one distinguishing characteristic, which is more than a difference caused by growing conditions or fertility levels, etc.; and

  • That the invention would not have been obvious to one having ordinary skill in the art as of the effective filing date of the claimed plant invention.

(Information in this box provided by the USPTO, and is accessible at https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/general-information-about-35-usc-161

 

We can help

The PTRC at NMSU has an expansive collection of plant patents that go all the way back to 1997

We can assist you with your plant patent search, and provide you access to the primary resource for Plant Patents in the state of New Mexico. Come by and let us assist you. 

Plant patent archive at NMSU