Are you currently developing new and unique strains?  Are you worried about unauthorized use and distribution of the genetic stock you spent years developing and perfecting?  Are you interested in finding ways to protect the strains you’ve developed as intellectual property that gives you exclusive rights to your strain?

If you answered yes to any or all of these questions, then Steep Hill can help you start by providing you with the unique genetic information specific to your new strain that can be part of a plant patent application.  Steep Hill lab is opening up its genetic analysis program to those growers and breeders who are currently developing or have newly developed, and not yet publicly available strains.  

The genetic information available from Steep Hill’s assorted genetic analysis tools can help build strong plant or utility patent applications.

Why Patent?  To keep your uniquely bred strains yours when the political and, thus ultimately, business climate change, and your hard work is suddenly making someone else a ton of money.  That someone might be the likes of BIG AG, BIG TOBACCO, or BIG PHARM.  The reality is that all strains currently publicly sold are fair game when Cannabis becomes Schedule 2.  Dow Ag, Monsanto, Scotts, etc, they all get to use those clones for free.  They buy a few of each, do what they do, then they don’t even need to buy the clones.  And then they will make new strains themselves, so why not get a head start and use some of the same tools they will be using. And then start patenting those new stable interesting phenotypes.  

Make it more difficult for them to get ahead.  That’s why you patent.

What is a Utility Patent? What is a plant patent?  Is a Plant Variety Protection Certificate a patent? What rights or protection is afforded by the various documents? How do you go about applying for a patent on a plant?  What information is required to support a patent on a plant?  Has anyone already applied for patents related to cannabis? The information provided below is borrowed from various portions of the United States Patent Office website, as well as other online resources (e.g., Perennial Patent Co, Citizen.org).  

A summary of the differences between the types of intellectual property protection available for plants is given first, followed by more detailed description of the different types There are three types of intellectual property protection for newly “invented” plants in the United States:

1) Plant Variety Protection Certificates,

2) Utility Patent

3) Plant Patents.  

Various similarities and differences of each are presented below.


USPTO Plant Patents under 35 U.S.C. 161

Plant Types Covered:

Applies to asexually reproduced plants (buds and cuttings)

Example: roses

Protection Granted

Claims define the “metes and bounds” of the invention.

Plant Patents have only one claim.

Plant Patent Infringement

- Plant patent holder has the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any parts thereof, into the United States.  However, Plant Patent holders cannot exclude others from using their patented varieties in breeding programs.

- The term for a Patent is now 20 years from initial filing.

 

Plant Variety Protection Certificates

Plant Types Covered:

1) Applies to sexually (seed) reproduced plants, tuber propagated plants and F1 hybrids.  The variety must be uniform, stable, and distinct from all other varieties. Fungi, bacteria, and first generation hybrids are excluded

Example: turfgrass seed

PROTECTION GRANTED:

PVP is granted by the USDA, NOT the USPTO, and the protection covers a single variety and essentially derived varieties. 

In a Patent, claims define the “metes and bounds” of the invention.  PVP Certificates have no claims.

- Grants exclusive rights to exclude others from selling the variety, or offering it for sale, or reproducing it, or importing it, or exporting the variety.

- There are two exemptions to the rights granted. One exists to allow farmers to save seed for use on their own farm or to sell it to their neighbors. Recent court decisions have defined who is a “farmer” and how much seed can be saved. Another exemption allows research to be conducted using the variety.

- The term of protection runs 18 years from the certificate’s date of issue, or 25 years in the case of a tree or vine.