Intellectual Property Law Knowledge Center

Three Options for Protecting Your New Plant Cultivar – Which are Best for You?

August 26th, 2020

By Dr. Stephany G. Small

Three Options for Protecting Your New Plant Cultivar – Which are Best for You?

Up until recently, breeders of asexually reproduced plants had essentially a single option for protecting their novel variety in the United States: a U.S. Plant Patent. But due to several legal and technological changes, three options now exist: plant patents, utility patents, and plant variety protection certificates.

Each option has its advantages, and which one is the most appropriate and beneficial will vary depending on a variety of factors. One important factor to consider in this analysis is what types of activities the variety owner is seeking to prohibit: asexual reproduction, mutation breeding, traditional breeding, etc. Another important factor to consider is when the plant was first sold both domestically and internationally. Additional factors include cost, how the variety was developed, and the importance of protection that extends beyond 20 years. Through a detailed analysis of all of these factors, one can decide which one of these protections is most appropriate. Or one may decide that multiple layers of protection would be better, as these protections are not mutually exclusive and having multiple layers can provide certain advantages.

Drs. Travis W. Bliss and Stephany G. Small gave a detailed presentation that examined all of these issues at the AmericanHort Cultivate’20 Virtual conference. The slide deck from that presentation, which was entitled “Three Options for Protecting Your New Plant Cultivar – Which are Best for You?”, provides an excellent summary of the distinctions between the three types of protection and the issues that one can consider when deciding which protection(s) to pursue.

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