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Amelie Robertos

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Aug 3, 2024, 1:39:51 AM8/3/24

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We have many varieties of fleshy-leaved succulents here in Southern California. Succulents are similar to cactus, but do not have needles. Succulent cuttings are great for observational drawing: the cuttings do not need water and do not wilt. In fact, if your students do not pull off the leaves they will look great in a week, without any water or soil!

And even though it seems like there are just that many ways you can draw succulents and house plants, there are quite a few different ones plus, remember, there is always an option to play with different types of pots and such.

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Patents to plants, which are stable and reproduced by asexual reproduction, and not a potato or other edible tuber reproduced plant, are provided for by Title 35 United States Code, Section 161 which states:

As noted in the last paragraph of the statute, the plant patent must also satisfy the general requirements of patentability. The subject matter of the application would be a plant which is developed or discovered by the inventor, and which has been found stable by asexual reproduction. To be patentable, it is also required:

The term "inventor" means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention. Because there may be multiple steps in developing a plant invention, it is possible to have more than one inventor of a plant invention. For example, if one person discovered a new and distinct plant and asexually reproduced the plant, such person would be a sole inventor. If one person discovered or selected a new and distinct plant, and a second person asexually reproduced the plant and ascertained that the clone(s) of the plant were identical to the original plant in every distinguishing characteristic, the second person would properly be considered a co-inventor. If a group of staff or collaborators contributed to the final plant invention, everyone would be considered co-inventors. However, an inventor may direct that the step of asexual reproduction be performed by a custom propagation service or tissue culture enterprise. Those performing the service would not be considered co-inventors.

Asexual reproduction is the propagation of a plant without the use of fertilized seeds to assure an exact genetic copy of the plant being reproduced. Any known method of asexual reproduction which renders a true genetic copy of the plant may be employed. Acceptable modes of asexual reproduction would include but may not be limited to:

The purpose of asexual reproduction is to establish the uniformity and stability of the plant. This second step of the invention must be performed with sufficient time prior to application for patent rights to allow thorough evaluation of propagules or clones of the claimed plant for stability, thus assuring that such specimens retain the identical distinguishing characteristics of the original plant.

Grant of a plant patent precludes others from asexually reproducing, selling, offering for sale, or using the patented plant or any of its parts in the United States or importing them into the United States. A plant patent is regarded as limited to one plant, or genome. A plant derived from a sport or a mutant is unlikely of the same genotype as the original plant, and thus would not be covered by the plant patent to the original plant. Such plant derived from a sport or such mutant may itself be protected under a separate plant patent, subject to meeting the requirements of patentability. A plant patent expires 20 years from the filing date of the patent application. As with utility patents, when the plant patent expires, the subject matter of the patent is in the public domain.

While the formal requirements of an application for plant patent will be outlined below, anyone seeking a patent should consult with the USPTO Web site just before filing of an application to ensure that new requirements have not been made, and that the fees filed with the application reflect the current amount due, as such are subject to change. Filing an application which is not complete may result in the application not being accepted by the USPTO, and thus may result in the loss of intellectual property rights. Applications which are not formal when filed may also result in loss of rights. Current filing, search, and examination fees for Plant Patent Applications are listed on the USPTO fee schedule (fees are subject to change).

Those seeking a plant patent should be aware that they may prosecute their applications through the services of a registered patent attorney or agent. If the applicant is the assignee (juristic entity), then it is required that a patent practitioner be used. While the USPTO will not help in the selection of an attorney/agent, one seeking a plant patent should select an attorney/agent who is registered to practice before the USPTO.

With some exceptions, a plant patent application is subject to the same requirements as a utility application. Title 37 of the Code of Federal Regulations, Section 1.163(a), requires that the specification must contain as full and complete a botanical description as reasonably possible of the plant and the characteristics which distinguish that plant over known, related plants. The components of a plant application are similar to those of a utility application and are covered by the following guidelines which illustrate the preferred layout and content for patent applications. These guidelines are suggested for use by one filing a plant patent application:

The following arrangement is preferred in framing the specification and, except for the title of the invention, each of the lettered items should be preceded by the headings indicated below as tailored for application for a plant patent filed under 35 U.S.C. 161:

(g) Summary of the Invention. In the Summary section, the major characteristics of the plant are set forth, and they may be presented as a list of novel characteristics, or by a narrative description of the trait or traits of the plant which set the plant apart from all other plants of the botanical class and the market class of plant.

(h) Brief Description of the Drawing. Under this heading, a separate brief description should be presented to describe the contents of each view or figure of the drawing. The drawing in a plant patent must show the plant with the most distinguishing characteristics of the plant in sufficient scale to be identifiable when reduced by as much as 50%. Drawings should be photographic, and must be in color where coloration is a distinguishing characteristic. Where characteristics of foliage, bark, flowers and/or fruit are distinguishing, such plant parts should be clearly depicted in one or more figures of drawing.

(i) Detailed Botanical Description of the Plant. This section should be a complete botanical description of the claimed plant. Specification of the genus, species and market class may begin this section, and the parents of the claimed plant may be specified in the initial part of this section. The growth habit of the plant should be described as to the shape of the plant at maturity, and branching habit. The characteristics of the plant in winter dormancy should be completely described, if appropriate. A complete botanical description of bark, buds, blossoms, leaves, and fruit should be a part of the disclosure. Plant characteristics which are not capable of definitive written description or which cannot be clearly shown must be given substantive attention in this portion of the application. These would include, but not limited to, fragrance, taste, disease resistance, productivity, precocity, and vigor. Even if the characteristics are well depicted, the botanical characteristics must be substantively described. The descriptions in this section should be botanical in nature and should be in terms of the art of the plant. The detail of this section should be sufficient to prevent others from attempting to patent the same plant at a later date by simply describing the plant in more detail and with the allegation that the original patent did not state the characteristics being further described.

(j) Claim. A plant patent is limited to one claim. The claim shall be in formal terms to the plant as shown and described, as the claim is statutorily drawn to the plant as a whole. The claim may also make reference to one or more of the unusual characteristics of the plant, but may not claim parts or products of the plant. The claim must be in single sentence form and on a separate sheet.

(k) Abstract of the Disclosure. The abstract is a brief description of the plant and of the most notable or novel and important characteristics of the claimed plant. Preferably, the description of the plant will be a condensed review or presentation of the most distinguishing characteristics of the plant.

While background information for specific classes of plants may be readily available, one seeking to file a plant patent application should be thoroughly familiar with the characteristics of the plant, and must assure that the plant is stable. Invention for purposes of a plant patent is a two-step process:

The second step, which consists of asexual reproduction, tests the stability of the claimed plant to assure that the plant's unique characteristics are not due to disease, infection, or exposure to agents which cause a change in the plant's appearance which is transitory and not due to a change in the genotype of the plant.

It is important that each of the above steps is satisfied before an application is filed. The inventor of a plant must have discovered or identified the novel plant, and must have asexually reproduced the plant and observed the clones so produced for a sufficient amount of time to have concluded that the clones are identical to the parent plant in all characteristics. It would be inappropriate to file an application before the second step of invention had been completed. Filing of an application before the second step of invention has been completed will result in rejection of the claim as being premature and nonstatutory.