Patents primer

Patents primer

Do you understand the process?

November 5, 2013

By Maria Zampini

I heard Charlie Hall, Ellison Chair in International Floriculture at Texas A&M University, talk about “hypercompetition.” He defined it as an environment characterized by intense and rapid competitive moves in which competitors build new advantages and simultaneously erode the advantages of their rivals.

An element of hypercompetition in the green industry is new plant introductions. Superior new plants can differentiate one breeder or one grower from his competition.

Hall went on to define differentiation strategy as an integrated set of actions taken to produce goods or services (at an acceptable cost) that customers perceive as being different in ways that are important to them. But the key to profitability in this industry is not selling more flowers or plants per se, but getting more dollars for the flowers or plants we do sell. 

One way to create more value and differentiate plants is through the original packaging, labeling, advertising and branding efforts.

However, along with patented and trademarked plants and their branding sometimes comes confusion, misunderstanding and frustration. My hope is to help dispel some of the mysteries associated with the legalese behind new plants and shed light on how patented and trademarked plant introductions can be a viable marketing tool.

Patents primer

The Plant Patent Act of 1930 was actually enacted to develop an incentive and reward for plant breeders and the horticulture industry. In laymen’s terms, a plant patent legally protects the actual plant itself. This means no one can asexually propagate (such as cuttings, grafting, budding, divisions or tissue culture) without permission; i.e. they need a license contract from the patent owner to propagate the patented plant. The patent also affords protection on plant parts including cut flowers, fruit and berries.

So, what can be patented? A plant must be new and discovered in a cultivated area. It should not have been sold or offered for sale for more than one year prior to a formal patent application being submitted.

Plant patent applications are extremely detailed, in particular so you can distinguish what makes it novel or unique compared to other cultivars or varieties in the genus and/or species in question. The type of information necessary includes, but is not limited to, how best the plant may be asexually reproduced; how, when and by whom the plant was discovered or bred; and a thorough botanical description including details of all the plant parts and accompanying references to the Royal Horticultural Society Colour Chart.

Protected plants are identified in several ways including the following; PAF or PPAF (patent or plant patent applied for) or PP (plant patent) followed by the patent number.

A plant patent has a life span of 20 years. It is not renewable, and once expired, a patented plant is available to anyone. A plant patent only provides protection rights within the United States. Thus, hybridizers of plants with strong marketing potential will need to consider applying for Plant Breeders Rights protection in countries outside of the U.S.

Patenting can be a long, expensive process, especially when there are no guarantees that a new introduction will be received positively by the gardening public. It can take 10, 20 or 30 years or more to select, evaluate, test and multiply a plant until suitable numbers of it are ready for marketing and sale.

Read the rest of the story here, including ways to protect your patent.