U.S. Plant Patents

Plant patents are granted by the United States Patent and Trademark Office, protect a unique, vegetatively-reproduced variety, and have one claim directed to the unique variety.  Plant patents cannot be granted for tuber-produced crops, such as potatoes and Jerusalem artichokes.  A plant patent does not inherently prohibit the use of the variety in a breeding program.  Plant patents are in-effect for 20 years from the filing date of the application and do not require the payment of maintenance fees.

U.S. Utility Patents

A utility patent granted by the United States Patent and Trademark Office can cover claims to the variety, a specific attribute of the variety (such as disease resistance and expression of a specific trait) and can prevent others from using the variety as a parent in breeding, genetically manipulating the variety, saving and replanting seed, and is in-effect for a period of 20 years from the filing date of the application, so long as maintenance fees are paid.  Patent applicants are required to deposit a sample of seed of the variety with a recognized USPTO depository.  Utility patents on asexually reproduced plants are becoming a possibility in recent years so long as the patent applicant is able to deposit a biological specimen, such as a live tissue culture or cryogenically preserved callus, with a USPTO recognized depository that will accept such type of specimen.

U.S. Plant Variety Protection Certificates (PVP)

A Plant Variety Protection Certificate is Issued by the United States Department of Agriculture, Agricultural Marketing Service and provides protection of newly developed, sexually reproduced plants as well as sports and mutations of the variety that are essentially derived.  Certificate owners have rights to exclude others from marketing and selling their varieties, but there is an exception to allow farmers to save seed to be planted on their own land.  Additionally, there is a research exception that allows the use of the protected variety for breeding purposes.  A seed sample of at least 3,000 untreated seed is required to be deposited.  PVP certificates are valid for 20 years from issue and 25 years for vines and trees.  Payment of maintenance fees are not required.  The 2018 Farm Bill includes an update to the PVP Act, if passed, will allow protection for asexually reproduced crops.  The new legislation would protect certificate holders from being exploited by essentially derived varieties.

International Plant Breeders Rights (PBR)

Plant Breeders Rights are provided by the International Convention for the Protection of New Varieties of Plants, known as UPOV, and protect both sexually and asexually reproduced varieties that are new, uniform, distinct and stable.  Typically, in the country where protection is sought, an examining authority will perform a grow-out test over one or more seasons to determine if the variety is new, uniform, distinct and stable.  If these tests are passed, protection is granted for 20 to 25 years and 25 to 30 years for trees and vines.  Similar to a U.S. PVP, there is an exception to allow farmers to save seed to be planted on their own land and allow others to use the protected variety for breeding purposes.  It is important to note that protection laws vary from country to country. Annual renewal fees are required in most countries to maintain rights.