Plant Patents: The Third Type and How Long They Last

There are three types of US patents and plant patents are the one most people forget about. They cover a narrow but real category: asexually reproduced distinct and new plant varieties. Understanding how plant patents work and when they expire is relevant for nurseries, breeders and anyone dealing with patented horticultural varieties.

What plant patents cover

A plant patent protects a distinct and new variety of plant that has been asexually reproduced. "Asexually reproduced" means propagated by means other than seeds, such as:

• Cuttings
• Grafting
• Budding
• Division
• Layering
• Tissue culture

The plant must be novel (not previously patented or publicly sold in the US more than a year before the application), distinct from existing varieties in at least one identifiable characteristic and able to be reproduced asexually. The characteristic that makes it distinct must also be stable across successive reproductions.

What plant patents don't cover

Sexually reproduced plants (those propagated by seeds) are generally not eligible for plant patents. They may be eligible for Plant Variety Protection (PVP) certificates, which are issued by the USDA under a different statute, not the patent statute.

Tuber-propagated plants (potatoes, Jerusalem artichokes) are specifically excluded from plant patent eligibility.

Mutations or sports may be eligible if they can be asexually reproduced and meet the distinctness requirements, but naturally occurring plants found in the wild are not.

How long a plant patent lasts

Plant patents last 20 years from the filing date. This is the same term as utility patents, measured from the same starting point.

Unlike utility patents, plant patents have no maintenance fee requirements. Once issued, a plant patent runs its full 20-year term from filing without any renewal obligation.

Plant patents are also not eligible for patent term adjustment (PTA) or patent term extension (PTE). The term is fixed at 20 years from filing.

Examples of patented plants

Nearly every rose variety sold by a commercial nursery was patented at some point, with patents expiring over time as varieties age. Many classic fruit and vegetable varieties in commercial production carry or carried plant patents:

• 'Honeycrisp' apple (PP 7,197, expired)
• 'Sweet Glo' tomato
• Many ornamental shrubs and perennials sold in garden centers

When shopping for plants at a nursery, the tag sometimes includes a patent number or a "patent pending" notice. Once a variety's patent expires, anyone can freely propagate and sell that variety.

Plant patents vs. Plant Variety Protection

Plant patents (issued by the USPTO) and Plant Variety Protection certificates (issued by the USDA) serve similar goals but through different statutes and with different requirements:

| Feature | Plant Patent | PVP Certificate | |---|---|---| | Governing law | 35 USC 161-164 | Plant Variety Protection Act | | Issuing agency | USPTO | USDA | | Covers | Asexually reproduced varieties | Sexually reproduced (seed) varieties | | Term | 20 years from filing | 20 years (25 for trees/vines) | | Maintenance fees | None | Annual fees required |

A breeder developing a new variety may pursue one or both forms of protection depending on how the plant reproduces and what markets they're targeting.

Calculating plant patent expiration

Plant patent expiration is simpler than utility patent expiration. There are no maintenance fees to check, no PTA adjustments and no PTE extensions. The expiration date is:

Filing date + 20 years

If you know when the application was filed, the calculation is straightforward. The USPTO lists the filing date on the patent's cover page.

The Patent Sunset calculator handles plant patents using the correct 20-year-from-filing calculation and will display "expired" status for any plant patent whose term has elapsed.

Why plant patent expiration matters

Nursery operators, breeders and agricultural businesses track plant patent expirations for legitimate commercial reasons. When a popular variety's patent expires, competing nurseries can legally begin propagating and selling that variety. Before expiration, they need a license from the patent holder.

For anyone working with commercial plant varieties, knowing the patent status is straightforward: look up the patent number and check the expiration date.