Michael J. Foycik Jr., Esq.

PREPARATION OF THE APPLICATION – PLANT PATENT

While background information for specific classes of plants may be readily available, one seeking to file a plant patent application should be thoroughly familiar with the characteristics of the plant, and must assure that the plant is stable. Invention for purposes of a plant patent is a two step process:

• The first step is the discovery step which involves the identification of a novel plant. This step could be performed in any cultivated area. It could involve the identification or recognition of an off­type plant in a monoculture of a known variety or the identification of a desirable mutant which was either spontaneous or induced. Or, it could result from the identification or recognition of an outstanding individual within the progeny of a cross made in a planned breeding program.
• The second step, which consists of asexual reproduction, tests the stability of the claimed plant to assure that the plant's unique characteristics are not due to disease, infection, or exposure to agents which cause a change in the plant's appearance which is transitory and not due to a change in the genotype of the plant.

It is important that each of the above steps is satisfied before an application is filed. The inventor of a plant must have discovered or identified the novel plant, and must have asexually reproduced the plant and observed the clones so produced for a sufficient amount of time to have concluded that the clones are identical to the parent plant in all characteristics. It would be inappropriate to file an application before the second step of invention had been completed. Filing of an application before the second step of invention has been completed will result in rejection of the claim as being premature and non¬statutory.

Information Source: www.uspto.gov