Buhler & Associates Patent Law - Riverside

35 U.S.C. § 161. Patents for Plants

            Whoever invents or discovers and asexually reproduces and distinct and new variety of plant, including cultivated sport, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a plant patent therefore, subject to the conditions and requirements of this title.

            The provisions of this title relating to patents for inventions shall apply to patents for plants, except as otherwise provided.

            Asexually propagated plants are those that are reproduces by means other than from seeds, such as by the rooting of cuttings, by layering, budding, grafting, inarching, etc. Plants capable of sexual reproduction are not excluded from consideration is they have also been asexually reproduced.

            With reference to tuber propagated plants, for which a plant patent cannot be obtained, the term “tuber” is used in its narrow horticultural sense as meaning a short, thickened portion of an underground branch. Such plants covered by the term “tuber propagated” are the Irish potato and the Jerusalem artichoke. This exception is made because this group alone, among asexually reproduced plants, is propagated by the same part of the plant that is sold as food.

            The term “plant” has been interpreted to mean “plant” in the ordinary and acceptable sense and not in the strict scientific sense and this excludes bacterial.