U.S. Patent No. PP29,724 P3 (‘724) issued on October 2, 2018, for “Salvia Plant Named ‘Balmirvio’.” It was issued to inventor Troy Thorup of Chiang Mai, Thailand. The applicant/assignee is Ball Horticultural Company of West Chicago, Ilinois, an ornamental plant and seed company. This is a plant patent under 35 U.S.C. §161, which protects new and distinct cultivars of plants. According to the specification, the Latin name is Salvia greggii, and the varietal denomination is ‘Balmirvio’ (MPEP 1601).
Figure 1 below illustrates the plant ‘Balmirvio’.
For plant patents, the utility requirement under 35 U.S.C. §101 is replaced with distinctiveness, and the ‘724 patent’s distinctiveness over the prior art as described in the specification is shown as:
- Plants of the new cultivar are shorter than plants of [prior art] ‘EGGBEN004’;
- Plants of the new cultivar have darker purple-colored flowers than plants of the ‘EGGBEN004’; and
- Plants of the new cultivar have larger-sized flowers, as measured by corolla width, than plants of ‘EGGBEN004’.
All plant patents have a 20 year term, and the ‘724 patent expires on July 17, 2037 (MPEP 2701).
The Cooperative Patent Classification is A01H (new plants or processes for obtaining them; plant reproduction by tissue culture techniques).
Plant patents are a unique type of patents issued by the USPTO, although only a very small number (about 1%) are actually issued each year. Keep in mind the plants not only must be distinct, but also new, which means they must invented (i.e., man-made or genetically modified), and asexually reproducible (i.e., not through seed propagation). Plant patents represent a facsinating area under U.S. patent law.
Please contact Yonaxis for more information on plant patents, or patents in general, if you have any questions.