The question of whether or not plants can be patented might seem absurd when you take a walk through the woods and observe trees, bushes, grasses, flowers and more growing in the wild. No one can obtain a patent for those naturally occurring, common plants.

Asexual reproduction

However, let’s imagine that you happen upon a bright blue fern that looks unlike any you’ve seen before. It is possible that, if you can asexually reproduce that distinctive fern, you could obtain a patent for it. It should be noted that asexual reproduction of a plant means that it is reproduced without seeds (often done with cuttings, buddings or grafts).

On another stroll, this time past your neighbor’s home, you might see in their garden rose bushes or an apple tree, for instance, for which there are patents.

And when you celebrate the beauty of your neighbor’s garden, it might well be with a glass of wine that began with a patented grape. Or your celebration could go in other directions, with a swig of beer brewed with patented hops (or patented barley), or perhaps with a celebratory selection of patent-protected cannabis.

Plants as intellectual property

To answer the question posed at the top of this post, yes, plants can be intellectual property that can be protected by a patent. A few facts about plant patents to consider:

  • The plant can be discovered (as in the case of the bright blue fern) or cultivated.
  • The plant must be new and distinctive.
  • The plant must be asexually reproducible.
  • Certain tubers – such as the Irish potato – aren’t eligible for plant patents. (The U.S. Patent and Trademark Office says the Irish potato is among a small group of asexually reproduced plants excluded from patent protection because they’re “propagated by the same part of the plant that is sold as food.”)
  • Certain plants, seeds and plant-reproduction processes can be protected with a utility patent (a type of patent we’ll cover in a future blog post).

In the U.S., an inventor has one year in which to apply for a patent after initially selling or releasing the plant.

In Canada, plant breeders’ rights (PBR) can be obtained to protect new varieties of plants, such as grapes, hops, barley or cannabis. A PBR certificate is intellectual property protection similar to a patent. The inventor/plant breeder also has a one-year deadline in which to apply for IP protection of a plant.