What Are Plant Patents? Requirements, Cost, and Duration

A plant patent is a 20-year grant from the U.S. Patent and Trademark Office that lets the holder stop others from asexually reproducing, selling, using, or importing a new and distinct plant variety, along with its parts and progeny. Plant patents exist because breeding a genuinely new variety can take years, and without legal protection anyone could take a cutting and undercut the person who did the work. The statute behind them, 35 U.S.C. 161, dates to the Plant Patent Act of 1930.¹

What the Grant Covers

Under 35 U.S.C. 161, anyone who invents or discovers and asexually reproduces a new and distinct plant variety can apply. Asexual reproduction means propagation through grafting, budding, cuttings, or similar methods rather than from seed. Because those methods create genetic clones, the patent effectively covers a single genetic identity and every clone derived from it.¹

The grant lets the holder block others from asexually reproducing the plant, selling or offering it for sale, using it, or importing it (or any of its parts or progeny) into the United States.² If someone buys a patented rose variety and starts selling cloned cuttings without authorization, the patent holder can sue. Protection runs 20 years from the filing date.³

What Falls Outside the Statute

Several categories are ineligible, and they trip people up more often than the eligibility rules themselves.

Sexually reproduced plants. Seed-grown plants produce genetically unique offspring, so they fall outside the clone-based framework.
Tuber-propagated plants. Potatoes, Jerusalem artichokes, and similar tuber crops are specifically excluded by the statute.
Wild plants. A plant found growing in an uncultivated area is not patentable. A discovered plant must have been found in a cultivated setting to qualify.

These exclusions do not leave those plants without any option; they simply cannot receive a plant patent. Other frameworks, discussed below, cover some of the gaps.¹

Whether the Plant Qualifies

The USPTO looks at four core criteria.

New and Distinct

The variety must not have been previously sold, publicly known, or described in a publication before the application is filed. It must also be clearly distinguishable from existing varieties by at least one meaningful characteristic: flower color, growth habit, disease resistance, fruit size, or something else a botanist would recognize as a genuine difference.¹

Asexually Reproduced

The applicant must have already completed asexual reproduction and observed the resulting clones long enough to confirm they are identical to the parent. Filing before this step is finished results in rejection as premature.³

Non-Obvious

The differences between the new plant and existing varieties cannot be something obvious to a person experienced in plant breeding. A slightly taller version of an existing cultivar with no other distinguishing features would likely fail.

Cultivated Discovery

A discovered plant must have been found in a cultivated area, not growing wild. The statute rewards human effort in developing or recognizing new varieties, not the cataloging of what nature produces on its own.¹

How to Apply

Plant patent applications follow a structure similar to utility patents with some notable differences. The specification must contain as full and complete a botanical description as reasonably possible, covering growth habit, bark, buds, blossoms, leaves, fruit, and qualities that are hard to capture in writing such as fragrance, taste, and disease resistance.³

The statute expressly says a plant patent cannot be declared invalid solely because the written description is incomplete, so long as it is “as complete as is reasonably possible.” Living organisms are harder to describe exhaustively than machines, and the law accounts for that.⁴

A plant patent is limited to a single claim, written in one sentence, directed to the plant as shown and described. The claim covers the whole plant. It cannot claim individual parts or products. Drawings must show the plant’s most distinguishing features, and they must be in color when coloration is a distinguishing characteristic. Two copies of any color drawings are required. The applicant must also file an oath or declaration confirming that asexual reproduction has been completed.³

Cost and Duration

USPTO fees for a plant patent application add up quickly. For a standard (large entity) applicant, the current fees are:

Filing fee: $240
Search fee: $485
Examination fee: $725
Issue fee: $905

The total in USPTO fees alone comes to $2,355 for a large entity. Small entities pay half ($942 total), and micro entities pay a quarter ($471 total).⁵ Attorney fees for preparing and prosecuting the application add substantially to the cost, and specialized patent attorneys in this field commonly charge $350 to $425 per hour.

Once granted, protection lasts 20 years from the filing date. Unlike utility patents, plant patents require no maintenance fee payments during the term.³

When a Different Form of Protection Fits Better

A plant patent is one of several tools. The right choice depends on how the plant reproduces, what aspect you want to protect, and how broad the coverage needs to be.

Utility Patents

Utility patents under 35 U.S.C. 101 protect new and useful inventions, including processes and compositions of matter.⁶ Applied to plants, they can cover genetically engineered varieties, specific traits like herbicide resistance, breeding methods, and plant-derived products. They apply to both sexually and asexually reproduced plants. The tradeoff: utility patents are more expensive, harder to obtain, and require maintenance fee payments at 4, 8, and 12 years.

Where a plant patent protects a single variety and its clones, a utility patent can protect an underlying genetic trait across many varieties. A company that engineers a gene for disease resistance can use a utility patent to cover that gene in any plant variety containing it. That scope difference is why most major agricultural biotech patents are utility patents.

Plant Variety Protection Certificates

Plant Variety Protection (PVP) certificates are issued by the USDA’s Plant Variety Protection Office, not the USPTO. They originally covered sexually reproduced and tuber-propagated varieties, and the 2018 Farm Bill expanded the program to include asexually reproduced plants as well.⁷

PVP certificates require the variety to be new, distinct, uniform, and stable. Protection lasts 20 years for most crops and 25 years for trees and vines. One practical difference matters for growers and researchers: PVP certificates include exemptions letting farmers save seed for replanting and letting researchers use protected varieties in breeding programs. Plant patents have no such built-in exemptions.⁸

Design Patents

Design patents protect the ornamental appearance of a manufactured article and are not a practical option for a living plant.⁹ For horticulture and agriculture, plant patents and PVP certificates are the relevant tools.

Protection Outside the United States

A U.S. plant patent only provides protection within the United States. Breeders who sell or license varieties internationally need to pursue protection in each country where they do business. The International Union for the Protection of New Varieties of Plants (UPOV) provides a framework member countries use to grant breeder’s rights, though the specific form of protection varies by country. The USPTO leads U.S. participation in UPOV meetings.¹⁰

Enforcing the Patent

Owning a plant patent does not mean the USPTO enforces it for you. Enforcement is the patent holder’s responsibility. If someone asexually reproduces the patented plant without permission, the recourse is an infringement suit in federal court. Remedies generally include damages adequate to compensate for the infringement (no less than a reasonable royalty) and potentially an injunction. The same remedies available for utility patent infringement under 35 U.S.C. Chapter 29 apply to plant patents.

Proving infringement is the practical challenge. Genetic testing can establish that a suspected infringing plant is a clone of the patented variety, but this kind of litigation is expensive and typically only worthwhile when the commercial stakes are significant. Most enforcement activity involves well-known ornamental and fruit varieties where unauthorized propagation is commercially widespread.

1
Office of the Law Revision Counsel. 35 U.S.C. 161 – Patents for Plants
2
GovInfo. 35 U.S.C. Chapter 15 – Plant Patents
3
United States Patent and Trademark Office. General Information About 35 U.S.C. 161 Plant Patents
4
Office of the Law Revision Counsel. 35 U.S.C. 162 – Description, Claim
5
United States Patent and Trademark Office. USPTO Fee Schedule
6
Office of the Law Revision Counsel. 35 U.S.C. 101 – Inventions Patentable
7
Agricultural Marketing Service. Plant Variety Protection
8
Agricultural Marketing Service. Plant Variety Protection Act
9
Office of the Law Revision Counsel. 35 U.S.C. 171 – Patents for Designs
10
United States Patent and Trademark Office. Plant and Plant Variety Protection