Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 22, Issue 11
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April Showers Bring May Plant Patents
By Melissa M. Chapman
The spring season brings us flower beds full of fresh blooms the likes of tulips and daffodils. In the coming weeks and months, we will see even more flowers come to life and vegetable and fruit plants will begin producing crops. While admiring a flourishing garden, you may have wondered if a plant can be patented. The surprising answer is yes!
The United States Patent and Trademark Office began granting plant patents in the 1930s. A plant patent may be granted to an inventor who created a new variety of plant through asexual reproduction. Asexual reproduction means that the plant is reproduced by means other than through seeds. If granted, a plant patent provides protection for twenty years from the date of filing a patent application, providing the right to exclude others from asexually reproducing the plant, selling or using the plant, and importing the plant into the United States.
The first plant patent was for a rose variety, granted on August 18, 1931. Characterized for its champagne-colored blooms, and climbing and everblooming habit, the “New Dawn Rose” continues to be extremely popular. Though this particular patent has since expired, rose varieties continue to be one of the largest categories of plant patents. In fact, nearly half of all plant patents granted between 1931 and 1970 were for roses, and they continue to make up a large percentage of the granted plant patents today.
One of the most popular plants having a patent is the Hass Avocado. Patented in 1935 by Rudolph Hass, the Hass Avocado was one of the first fruits for which a plant patent was granted. Made from a gardening mistake and descending from a single tree in Rudolph Hass’ front yard, the Hass Avocado is known for its dark green and bumpy skin. It has become the most popular variety of avocado in the U.S. due to its long shelf life and high oil content, accounting for nearly 95% of the domestic avocado market.
In 2016, the patent office granted its first plant patent to a cannabis plant named Ecuadorian Sativa. Since then, only a small number of cannabis plants have been patented. However, with the increased focus on the legalization of cannabis, it should come as no surprise that the number of applications filed for cannabis plant patents continues to grow.
The next time you admire a garden or visit a nursery, you may wonder if the plants you have your eyes on have been granted patents from the United States Patent and Trademark Office.
Published May 27, 2022
Pleading and Proving a Trade Secret Case
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