The agricultural landscape underwent a transformative shift in the 20th century with the Green Revolution, marked by the widespread research, development, and adoption of highyielding plant varieties. While this revolution significantly boosted global agricultural production towards ensuring sustainable food resources for the anticipated 9 billion inhabitants by 2050, demands require further innovation in agriculture. Recognizing the critical role of advancements in plant breeding and the development of new varieties, governments worldwide have instituted legal frameworks to provide enforceable commercial protection. In the United States, this protection encompasses various forms, such as plant variety protection, plant patents, utility patents, and trade dress, all aimed at incentivizing investment in the improvement of plant varieties essential for the future of agriculture and humankind.
Plant Variety Protection
The Plant Variety Protection Office (PVPO) of the U.S. Department of Agriculture provides intellectual property protection to breeders of new plant varieties through Plant Variety Protection (PVP) Certificates. Anyone who is the breeder of a unique variety of a sexually reproduced, asexually reproduced, or tuber-propagated plant may apply for plant variety protection. Industrial hemp with <0.3% THC is eligible for protection, but fungi, bacteria, and controlled species are not. The applicant may be an individual, a public institution, or a corporation.
Upon receiving applications, the PVPO examines them to establish that the varieties are new, distinct, uniform and stable. The following are general program requirements:
1. Completing all application forms. See https://www.ams.usda.gov/services/plant-variety-protection/pvpo-forms;
2. Paying requisite fees. Currently, a fee of $4,382 USD must be paid with the application, and a certificate fee of $768 USD must be paid upon issuance of the certificate (total cost of protection is $5,150 USD). These fees are subject to change and are non-refundable. There are no maintenance fees;
3. Providing a variety name that does not conflict with an existing name for the crop; and
4. Depositing of seeds or tissue cultures of sexually reproduced plants (for asexually reproduced plants, samples are to be maintained by the applicants themselves and need not be deposited).
PVP Certificate owners have the right to exclude others from selling, marketing, reproducing, importing or exporting the protected variety for 20 years (25 years for trees and vines) from the issuance of the certificate. Since 2012, over 5,500 PVP Certificates have been issued.2
Plant Patents
Under 35 U.S.C. § 161, “[w]hoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor….” Asexually propagated plants include those that are reproduced by means other than from seeds, such as by the rooting of cuttings, by layering, budding, grafting, or inarching. For the sake of plant patent eligibility, algae and macro-fungi are regarded as plants, but bacteria are not.3 The specification must contain as full and complete a disclosure as possible of the plant and the characteristics that distinguish it over related known varieties, and must particularly point out where and in what manner the variety of plant has been asexually reproduced. For a newly found plant, the specification must particularly point out the location and character of the area where the plant was discovered.4 Only one claim is permitted, and it must be directed to the new and distinct variety of the specified plant as described and illustrated, and may also recite the principal distinguishing characteristics.5
The grant of a plant patent from the U.S. Patent and Trademark Office (USPTO) includes the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant, or any of its parts, or from importing the plant into the United States.6 A plant patent has a term which expires 20 years after the filing date of the application. The patent protects a single plant and its asexual progeny, and no maintenance fees are required to keep the patent in force.
Utility Patents
Utility patents are technology neutral, in that they are available for both sexually and asexually propagated plants, and they are not limited to a single plant variety or a single claim. They can be used to protect, for example, genetically modified plants, algae, bacteria, and fungi, genes, proteins and products, a class of varieties with specific traits, and methods of making or using the plants. However, naturally occurring plants cannot be protected.
The requirements for patentability include utility, novelty, non-obviousness, written description and enablement, and the grant of a utility patent from the USPTO gives the patentee the right to exclude others from making, using, offering for sale, or selling the invention throughout the U.S. or importing the invention into the U.S.7 A utility patent has a term that expires 20 years after the filing date of the application, and three separate maintenance fees are required to keep the patent in force for the entire term (currently totaling $13,460 USD8 for a large entity).
Utility patents are typically more difficult to obtain than PVP Certificates or plant patents, and are more expensive. Figure 1 shows the total number of issued utility patents covering new plant varieties, plant patents, and PVP certificates over the past 10 years.
Figure 1: Number of Issued Utility Patents by Classification, Plant Patents, and PVP Certificates from 2012-2022. Utility patents include A01G (Horticulture; cultivation of vegetables, flowers, rice, fruit, vines, hops or seaweed; forestry; watering); and A01H (New plants or processes for obtaining them; plant reproduction by tissue culture techniques).
Trade Dress
While PVP Certificates, plant patents, and utility patents are by far the most common forms of intellectual property used to protect plant varieties, there has been recent development in applying to register the biological morphology of plants using three-dimensional trademarks, known as trade dress. See, for example, an application filed to register the biological morphology of lettuce as a trademark. 9 Trade dress protection is limited to aesthetic functionality, which applies in situations where the design (biological morphology) does not provide a utilitarian advantage in terms of product performance, but provides a competitive advantage intrinsically tied to the design’s aesthetic.10 Unlike patents, there is no fixed term limit on trade dress protection. Federal trade dress protection lasts as long as the owner continues to regularly use the product in commerce.
Together, PVP Certificates, patents, and potentially trade dress collectively constitute a complementary intellectual property system in the U.S., with the recognition that they are not mutually exclusive. Each form plays a crucial role in incentivizing the agriculture industry to develop the essential plant varieties needed to feed the growing global population.
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