Patent, copyright, and trademark are the three most common and well-known IPs. However, there are many other IPs. Three types of IPs protecting new plant varieties, or plant breeder’s rights, are utility patents, plant patents under 35 U.S.C. §161, and plant variety protection certificates under 7 U.S.C. §2321. Utility patents are issued for new plant genes or methods, and sexually reproducible plant varieties. Plant patents are issued for asexually reproducible plant varieties, except for tuber propagated plants and bacteria. Both of these types of patents are examined and issued by the U.S. Patent and Trademark Office (USPTO). Cost of application drafting and prosecution can vary depending on the complexity of the plant variety and the length of prosecution, but can range from $4,000 to $10,000. Utility and plant patent terms are 20 years (35 U.S.C. §154(a); MPEP 2701).
PVP certificates are issued for seed and tuber-propagated plant varieties. PVP certificates are examined and issued by the Plant Variety Protection Office (PVPO). Costs of prosecution are $5,150 for the PVPO fees, and about another $2,500 to $5,000 for attorney fees for prosecution. PVP certificates have a term of 20 years for tuber propagated plant varieties, and 25 years for trees and vines (7 U.S.C. §2483).
Since April 24, 2019, the PVPO has accepted hemp-based seed-propagated plant varieties. As of the date of this posting, there are three new hemp applications.
- Application No. 201900191, Igweed, filed by applicant Water Rock Farming for a sativa new plant;
- Application No. 201900198, TOLS Cherry Wine S-1, filed by applicant Tree of Life Seeds, Inc., for a certified sativa seed varietal; and
- Application No. 201900199, NWG45S, filed by applicant New West Genetics, also for a certified sativa seed varietal.
Prosecution of these PVP applications should be within the typical 12-36 month range. For more information on plant patents or PVP certificates, please contact Yonaxis IP.