Plant IP Protections in the U.S.

You have discovered a new plant variety. How do you protect your intellectual property rights (IP) in the U.S.? What are some of the available forms of protection, and what is the right form for you?

There are at least three options for plant protection – a plant patent, a utility patent, and a plant variety protection (PVP) certificate.

Plant Patent

A plant patent protects a new, distinct, and asexually reproduced plant variety. Tuber propagated plants (e.g., potatoes) or plants found in an uncultivated state are not eligible for plant patent protection. Since the first plant patent was issued in 1931 for a climbing rose characterized by its everblooming habit, more than 36,550 plant patents have been issued up to April 2025.

To meet the “new” requirement for a plant patent, the plant must be a new variety not known or used by others before the plant patent application is filed. The distinctiveness can be based on characteristics that distinguish the plant from others, such as flower color, leaf shape, flavor, growth habit, method and ease of reproduction, or other unique traits. Asexually propagated plants are those that are reproduced by means other than from fertilized seeds. Any asexual reproduction method that provides a genetic copy of the plant can be used.

A plant patent has only one claim and protects one plant or genome. A plant patent holder has exclusive rights to prevent others from asexually reproducing the plant, and from using, offering for sale, or selling the patented plant or its parts, or from importing the patented plant, or any parts thereof. (35 U.S.C. § 163).

Plant Related Utility Patent

Unlike plant patents, a utility patent can protect plants that are asexually reproduced, sexually reproduced, or tuber propagated. In addition, utility patents not only protect individual plant variety but also groups of plants, plant parts, non-naturally occurring substances isolated from plants, as well as breeding methods, among others. Utility patents are typically used for transgenic plants, where the plant’s genetic material has been altered to confer a specific benefit, such as drought resistance, pest resistance, or higher yield.

Optionally, the applicant can submit biological deposits such as seeds or other propagation materials at an internationally recognized deposition facility. The deposits are treated as part of the application disclosure and can help to satisfy the written description, in particular the enablement requirement.

The owner of a utility patent can exclude others from making, using, selling, offering to sell, or importing the patented invention into the U.S.

PVP Certificate

Plant Variety Protection (PVP) Certificates are administered by the U.S. Department of Agriculture (USDA) under the Plant Variety Protection Act (PVPA). PVPA is the U.S. implementation of the international system of plant variety protection as coordinated by the International Union for the Protection of New Varieties of Plants (UPOV).

PVP certificates protect plants that are sexually reproduced, asexually reproduced, or tuber-propagated. To qualify for a PVP certificate, the applicants must show that their variety is new, distinct, uniform, and stable. Uniformness can be demonstrated if variations are describable, predictable, and commercially acceptable. Stability can be shown if the plant variety is not changed from one generation to the next.

Unlike plant and utility patents, which may have a one-year grace period under certain circumstances, PVP certificates allow for a one-year grace period for seed sold or offered for sale in the U.S., a four-year grace period if the variety has only been sold in a foreign country, and a six-year grace period for a tree or vine sold anywhere.

Deposit is not required for asexually reproduced varieties. On the other hand, a seed or plant tissue deposit is required for sexually or tuber propagated varieties.

As to the protection, the owner of a PVP certificate can exclude others from selling, marketing, offering to buy or sell, delivering, consigning, exchanging, importing or exporting the variety, sexually multiplying or propagating the variety by tuber, using the variety in producing a hybrid, or conditioning the variety for the purpose of propagation.

There are two exemptions to the exclusivity provided by the PVP certification though – a research exemption and a right to save seed exemption. The research exemption allows one to use the certified variety for breeding to develop a new variety. Under the right to save seed exemption, one can save a seed that was lawfully obtained from the breeder for the sole use of replanting on one’s land.

PVP certificates generally provide longer protection than utility and plant patents. The term of PVP certificates is 25 years for trees and vines and 20 years for other varieties, staring from the date that the certificates are issued. In contrast, the term for plant and utility patents is 20 years from the effective application filling date, subject to patent term adjustment.

Choosing Among the Three Forms of Plant Protections in the U.S.

The differences of plant patents, utility patents, and PVP certificates are summarized in the attached table.

Although there are several ways to protect plants, not all plants can qualify for all three forms of IP protection. A plant variety may be barred from a plant or utility patent application but otherwise qualify for a PVP certificate due to the certificate’s longer grace period under certain circumstances. As another example, a sexually reproduced or tuber propagated variety is not eligible for plant patent protection, but it may be protected by a utility patent or a PVP certificate. Among the three IP protection forms, utility patents can offer a broader scope of protection; however, securing a utility patent is generally more difficult than obtaining a plant patent or PVP certificate. Accordingly, choosing which form of plant IP protection to pursue depends on the specific innovation, the innovator’s business needs, and other factors.

An innovator can also obtain multiple forms of protections for the new variety as plant patents, utility patents, and PVP certificates are not mutually exclusive. Having multiple protections can act as a deterrent to potential infringers, who often weigh the cost of multifront litigation against the cost of licensing.