What is a plant patent?
A plant patent is granted by the United States government to an inventor (or the inventor's heirs or assigns) who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. The grant, which lasts for 20 years from the date of filing the application, protects the patent owner’s right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any part thereof, into the United States. This protection is limited to a plant in its ordinary meaning:
- A living plant organism which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction, but cannot otherwise be "made" or "manufactured."
- Cultivated sports, mutants, hybrids, or transformed plants, where sports or mutants may be spontaneous or induced, and hybrids may be natural, from a planned breeding program, or somatic in source. While natural plant mutants might have naturally occurred, they must have been discovered in a cultivated area.
- Algae and macro-fungi are regarded as plants, but bacteria are not.The information presented in this publication is tailored to apply to, and is limited to patents on asexually reproduced plants. While the USPTO does accept utility applications having claims to plants, seed, genes, etc., such practice is beyond the scope of this publication. General information regarding utility patent practice can be obtained by calling the USPTO Inventors Assistance Center at 1-800-786-9199, or from a registered patent attorney or agent. Intellectual property protection for seed-reproduced plant varieties other than a utility patent is available through the USDA’s Plant Variety Protection Office, Washington, D.C., which should be contacted for information regarding non-patent intellectual property protection for such varieties.
Provisions and Limitations
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:
"Whoever 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, subject to the conditions and requirements of this title.
The provisions of this title relating to patents for inventions shall apply to patents for plants, except as otherwise provided."
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:
- That the plant was invented or discovered in a cultivated state, and asexually reproduced.
- That the plant is not a plant which is excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part, as with potato or Jerusalem artichoke;
- That the inventor named for a plant patent application must be the person who actually invented the claimed plant, i.e., discovered or developed and identified or isolated, and asexually reproduced the plant;
- That the plant has not been patented, in public use, on sale, or otherwise available to the public prior to the effective filing date of the patent application with certain exceptions;
- That the plant has not been described in a U.S. patent or published patent application with certain exceptions;
- That the plant be shown to differ from known, related plants by at least one distinguishing characteristic, which is more than a difference caused by growing conditions or fertility levels, etc.; and
- That the invention would not have been obvious to one having ordinary skill in the art as of the effective filing date of the claimed plant invention.
Where doubt exists as to the patentability of a specific plant, a qualified patent practitioner should be consulted prior to filing an application for a plant patent.
Inventorship
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
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:
| Rooting Cuttings | Grafting and Budding |
| Apomictic Seeds | Bulbs |
| Division | Slips |
| Layering | Rhizomes |
| Runners | Corms |
| Tissue Culture | Nucellar Embryos |
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.
Rights Conveyed by a Plant Patent
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.
The Application
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 may be found at: http://www.uspto.gov/web/offices/ac/qs/ope/fees.htm. (Fees are subject to change.) Prospective applicants are reminded that currently plant patent applications under 35 U.S.C. 161 are not allowed to be filed electronically, for example, using the USPTO’s EFS-Web system available at the USPTO’s Web site.
Legal Representation
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.
The USPTO maintains a directory of registered patent attorneys and agents that can be downloaded at https://oedci.uspto.gov/OEDCI/practitionerRoster.jsp
Content and Arrangement
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:
Arrangement of the Specification
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:
(a) Title of the Invention. The title of the invention may include an introductory portion stating the name, citizenship, and residence of the inventor(s).
(b) Cross Reference to Related Applications (if any, unless included in an application data sheet). Related applications may include:
- A utility application from which the claimed plant is the subject of a divisional application.
- A continuation (co-pending, newly filed application) to the same plant filed when a parent application has not been allowed to a sibling cultivar.
- An application not co-pending with an original application which was not allowed.
- Copending applications to siblings or similar plants developed by the same breeding program, etc.
(c)Statement regarding Federally-sponsored research and development (if any).
(d)Latin name of the genus and species of the plant claimed.
(e)Variety denomination.
(f) Background of the invention.
- Field of the Invention. The field of the invention is intended to identify the botanical and market class of the invention, and to reflect how the plant will be used. This section should indicate the botanical name of the plant by genus and species, and should state the market class of the plant.
- Description of relevant prior art including information disclosed under 37 CFR 1.97 and 1.98. Here, the parents of the claimed plant, or known plants to which the claimed plant is related are discussed. Frequently the parent plant or plants are identified in this section and are described as to their most important or distinguishing characteristics. The claimed plant may be compared to the parent plant or plants. If the parent plants are not known, the probable parent plants may be indicated. It is appropriate in this section to indicate how the plant was attained and to detail the necessary averments to how and where the plant has been asexually reproduced. This section should also include a positive statement that the clones or propagules of the claimed plant are identical to the original plant in all distinguishing characteristics so as to establish that the claimed plant is stable.
(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.
Preparation of the Application
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 first step is the discovery step which involves the identification of a novel plant. This step could be performed in any cultivated area. It could involve the identification or recognition of an offtype plant in a monoculture of a known variety or the identification of a desirable mutant which was either spontaneous or induced. Or, it could result from the identification or recognition of an outstanding individual within the progeny of a cross made in a planned breeding program.
- 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.
Oath or Declaration
The inventor named for a plant patent application must be the person (or persons) who has (or have) invented or discovered and asexually reproduced the new and distinct variety of plant for which the patent is sought. In addition to the averments required for a utility application's oath or declaration, those applying for a plant patent must also state that applicant(s) has or have asexually reproduced the plant. If the plant is a newly found plant, the oath or declaration must also state that the plant was found in a cultivated area.
A Plant Patent Application Declaration, Form PTO/AIA/09, may be used to submit a declaration in a plant patent application filed on or after September16, 2012. Such Oath or Declaration may be filed at any time on or after filing of the application, but no later than the date on which the issue fee is paid.
The Drawing
Plant drawings are normally photographic, but may be presented in other mediums, such as in permanent water color renderings, which faithfully present the appearance of the plant. Such drawings are not mechanical drawings and should be artistic and competent in their execution. Figure numbers and reference characters need not be used unless specifically required by the examiner. The drawing must disclose all of the distinctive characteristics of the plant which are capable of visual representation. Detailed standards for drawings are set forth under 37 C.F.R. 1.84 (http://www.uspto.gov/web/offices/pac/mpep/mpep-9020-appx-r.html).
Drawings may be in color. Where color is a distinguishing characteristic of the new plant, the drawing must be in color. The colors depicted must correspond with their respective color designations set forth in the specifications defined in a recognized color dictionary which is specifically identified in the specification. Two copies of color drawings must be submitted.
Final Preparation and Assembly
Before an application is filed, the (clones of the) plant must have been carefully observed during the testing process. Because the botanical description of the plant must be reasonably complete, it would not suffice to describe just the fruit, or flower, or bark, or leaves of any specific plant, even if these plant parts were the valuable substance of the plant in commerce or the only parts seem to be distinctive or different. It would be inappropriate to describe just the bark, roots and juvenile growth of a rootstock, even if only these parts would normally be seen by or important to the consumer who was to purchase the plant.
In preparation of a plant patent disclosure, all parts of the plant should be carefully observed through at least one growth cycle and such observations should be recorded in detail. Because many plants (like pine trees of the same species, asparagus plants, bluegrass plants, etc.) may look very similar, it may take the collective differences in a number of traits to distinguish a new cultivar. Failure to record characteristics and differences at their time of availability in the growing season could result in applicant not being able to adequately botanically describe the claimed plant when the specification is drafted. Incomplete records of a claimed plant may render it impossible to overcome defects identified in an examiner's rejection or at the very least prolong prosecution of the application.
Among the factors which must be ascertained for a reasonably complete botanical description for the claimed plant are:
- Genus and species
- Habit of growth
- Cultivar name
- Precocity (if applicable)
- Botanical characteristics of plant structures (i.e. buds, bark, foliage, flowers, fruit, etc.)
- Fertility (Fecundity)
- Other characteristics which distinguish the plant such as resistance(s) to disease, drought, cold, dampness, etc., fragrance, coloration, regularity and time of bearing, quantity or quality of extracts, rooting ability, timing or duration of flowering season, etc.The amount of detail required in a plant patent application is determined on a case-by-case basis, and is determined by the similarity of the prior art plants to the plant being claimed. The examiner will evaluate the completeness of the application. The examiner's judgment may be tempered by the level of activity in a specific market class. The botanical description of a plant in a market class with a high level of commercial activity may require greater detail, substance and specificity than that for a plant in a market class of little activity.
The Examination
Upon filing, the application is reviewed for formalities in the USPTO’s Office of Patent Application Processing where it is assigned an application number, and if all formal requirements are found in compliance, the application is assigned to a patent examiner for examination based on the current patent rules and laws, the detailed procedure of which for plant applications can be found in Chapter 1600 of the Manual of Patent Examining Procedure (the MPEP) available from the USPTO’s Web site (http://www.uspto.gov/web/offices/pac/mpep/mpep-1600.html).
Helpful Hints
- Make every attempt not to present a name for the plant which has already been used or is confusingly similar to a plant of the same market or botanical class. Search old catalogs, Plant Variety Database of the International Union for the Protection of New Varieties of Plants (UPOV) at www.upov.int, and other available international register listings before assigning a name to a plant.
- File all drawings in duplicate. Be sure that two formally mounted sets of drawings accompany the application when filed, and that these are of reasonable fidelity to the specified colors of the plant. Be sure that the scale and clarity of the drawings are appropriate to allow for adequate reproduction even if reduced in scale upon publishing. Include a transmittal sheet which itemizes the contents of the application as filed.
- File each individual application in a separate envelope, and be sure to include all of the parts of each application in the same envelope. Include a self-addressed postcard itemizing all of the components of the application (see MPEP § 503) for return to applicant with a preliminary indication of the application number of the application.
- Model the application after a patent of acceptable format and content which describes a plant which is related to or in the same market class as the claimed plant, if one is available.
- Check that the oath or declaration is that required for a plant patent application. Ensure that the oath or declaration has been signed and permanent ink or its equivalent, and is signed no earlier than three months prior to the filing of the application. Check that the mailing address of the inventor(s) is/are correct and complete.
- Where color is a distinguishing characteristic of the plant, specify the color of the plant as defined by reference to an established color dictionary which is recognized in this country.
- Be sure that drawings filed are complete, correctly mounted, and reasonably correspond with the colors of the plant which are specified and to the true and characteristic plant coloration.
- Include the appropriate filing fee, search fee, and examination fee with the application to avoid processing delays.
- Direct pre-examination questions concerning the application to the Examiner, by telephone to expedite prosecution. Include a current telephone number with all correspondence with the USPTO.
Correspondence
New patent applications should be mailed to:
Commissioner for Patents
P.O. Box 1450
Alexandria, VA 22313-1450
P.O. Box 1450
Alexandria, VA 22313-1450
Telephone Inquiry Contacts
Any inquiry concerning this publication may be extended to
Supervisory Patent Examiner: Shubo (Joe) Zhou at (571) 272-0724 or
Supervisory Patent Examiner: Amjad Abraham at (571) 270-7058
Additional Links
- Download forms at http://www.uspto.gov/patent/patents-forms
- Fees http://www.uspto.gov/learning-and-resources/fees-and-payment
- The MPEP: http://www.uspto.gov/web/offices/pac/mpep/index.html
Plant Patent
What Is a Plant Patent?
A plant patent is an intellectual property right that protects a new and unique plant’s key characteristics from being copied, sold or used by others. A plant patent can help an inventor secure higher profits during the patent protectionperiod by preventing competitors from using the plant. Plant patents in the United States are granted by the United States Patent and Trademark Office (USPTO) to the inventor or the inventor’s heirs.
How a Plant Patent Works
A patentable plant can be natural, bred or somatic (created from non-reproductive cells of the plant). It can be invented or discovered, but a plant patent will only be granted to a discovered plant if the discovery is made in a cultivated area.
The plant can be an alga or a macro fungus, but bacteria do not qualify.
The plant must be asexually reproducible, and the reproduction must be genetically identical to the original and performed through methods such as root cuttings, bulbs, division, or grafting and budding to establish the plant’s stability. Tubers, such as potatoes and Jerusalem artichokes, are also not eligible for plant patents, nor are plants that are unique only because of growing conditions or soil fertility.
Like any invention, a plant must be non-obvious to qualify for patentability. A different type of patent, the utility patent, applies to certain plants, seeds, and plant-reproduction processes.
Requirements for a Plant Patent
An inventor has one year within selling or releasing the plant to apply for a plant patent. The USPTO will only grant a plant patent if the inventor provides a full and complete botanical description that explains how the plant is unique and includes drawings showing the plant’s unique features. The applicant must also comply with the other detailed requirements for a patent application and pay the relevant fees.
A plant patent can have two named inventors: one who discovered the plant and one who asexually reproduced it. If the invention is a team effort, every member of the team can be named as a co-inventor.
While a plant patent protects the inventor’s intellectual property rights for 20 years from the patent-application-filing date, the patent application itself becomes public 18 months after the earliest patent filing date, which means competitors will be able to learn the details of the invention much sooner.
In addition to applying for a plant patent, an inventor might also need to apply for a utility patent or a design patent to fully protect the plant. For example, if the new plant variety has a unique appearance, the inventor would want both a plant patent and a design patent.
What Is a Plant Patent?
A plant patent is for newly invented strains of asexually reproduced plants. To be patentable, the plant must have been asexually propagated. These are plants that reproduce by means other than from seeds, such as by the rooting of cuttings using layering, budding, grafting, or inarching. Not all countries allow the patenting of plants, but the USPTO issues a patent to anyone who has invented, discovered, or asexually reproduced a distinctly new kind of plant. This includes any cultigen, mutants species, hybrid species, and newly found seedlings not derived from a tuber-produced plant or a plant found in a wild state. Plants cultivated using tubers and wild or uncultivated plants are not patentable. The term “"tuber"” means short, thickened underground stem or rhizome. Plants covered by the term "“tuber-propagated”" include the Irish potato, Jerusalem artichoke, yams, and peanuts.
The History of Plant Patents in the U.S.
The U.S. Plant Patent Act of 1930 established patent rights for those inventors of new varieties of many asexually propagated plants. Two commonly patented examples are apple trees and rose bushes derived by cutting pieces of the stem, not by germinating seeds. Then as now, tuber-propagated plants, like potatoes, were exempt. This is because the part of the plant used for the propagation is also food. The 1985 legal decision known as Ex Parte Hibberd declared that utility patents, available to inventors since 1790, would also be applied to plants.
Why Do You Need to Know About Plant Patents?
Plant patents and trademarks create an incentive for design and innovation by plant breeders and scientists in the horticulture industry. Many falsely believe that these types of patents are commonly issued to protect the rights of the GMO or Genetically Modified Organism industry. However, that industry typically applies for a utility patent. Instead, plant patents promote the cultivation of new and novel plants and hybrids. Patenting a plant is similar to licensing any other new or novel invention and product. When a plant variety is patented, a royalty goes to the nursery or entity that owns the patent each time the plant sells. Plant patenting is an expensive, risky, and complicated process. The cost to patent a single variety of plant is thousands of dollars. There are no guarantees that consumers will want or appreciate the patented version.
When Should You Get a Plant Patent?
Any business, person, or nursery who breeds or discovers a new plant variety is the "inventor." There can be more than one inventor if filing for a patent jointly. Unless the inventor assigns the patent rights to another person or business through sale or voluntary forfeiture, the patent rights always belong to the inventor, or the inventor's successors, as personal property. A patent offers legal recourse for plant reproduction by use of cuttings, tissue culture, or any asexual means without the written permission or licensing by the inventor. Possession of illegally propagated plants of a patented species is infringement, even if the reproduction is inadvertent. To decide if a plant should be patented the inventor should consider the following four criteria:
- Is the plant exceptional, offering a significant contribution or valuable commercial and performance benefit?
- Does the benefit or contribution it offers outweigh the cost to the consumer?
- Can the market bear the introduction of a patented variety, including its royalty level?
- If the variety carries benefits, do they justify the premium cost of the royalty and the new product development and marketing processes?
It is the best practice to decide in advance, through market trials, if a variety will be received enthusiastically by the industry and if it can be profitable for all involved. Remember that if a plant is worth patenting, it is capable of providing a sustained royalty stream for many years or for the entire life of the patent term.
When Should You Not Get a Plant Patent?
Currently, you can get a plant patent only if the breeder or inventor has been able to asexually reproduce the plant by means other than through seeds. Asexual reproduction is required because it proves that the applicant can duplicate the process through which the plant was created. A new plant or series of plants might be eligible for a utility patent as well as a plant patent. Utility patents are usually for protecting species derived as the result of advanced scientific breeding, where the novel characteristics are genetically modified using an entirely new type of material. Outside the US, novel plants are protected by "Plant Breeders Rights."
Utility Patents for Plants
Utility patents have been issued since the 1980s for both human-made plants and plant elements. The criteria for utility patents varies from plant patents to some degree. Utility patent eligible plants can be reproduced either from seeds (sexually) or asexually. In the GMO (genetically modified organism) industry, utility patents are sought as a way to protect the specific elements of a plant such as proteins, genes or DNA strands, buds, pollen or fruit.
Utility patents are also appropriate for plant-based chemicals as well as any processes used to make these products. Plants that are resistant to pesticides or herbicides also fall into the category of GMO.
To get a utility patent, the plant must be made by humans and fit within the standard requirements of providing utility, novelty, and be a nonobvious creation. The patent draft should describe exhaustively and make a claim as to the specific characteristics of the plant for which protection is sought. This includes the claims as to the innovative properties of the new plant, as well as any contributions this it makes to society or the environment.
Often as part of the utility patenting process, seeds or plant tissues are sent to a public depository. For example, many countries have International Depositary Authorities for such purposes. A utility patent is typically more scrutinized. Therefore, it is more costly and time-consuming to acquire than a plant patent. A utility patent is considered, though, to be the stronger form of protection. This makes utility patenting of plants the first choice for large corporations that need to protect creations from both intentional and inadvertent infringement of the plant as well as its seed line.
Plant Variety Certification
Plant variety protection (PVP) is a certification process that allows breeders some degree of exclusivity over certain plant varieties they either invented or discovered. Since the goal of PVP systems is primarily the protection of natural material, breeders' rights do not cover any "technical processes" used in the propagation of the varieties. In other words, PVP doesn't grant exclusivity rights of particular breeding methods or systems. In these cases, a breeder needs to get a patent.
PVP varies from patenting in other ways. It is less expensive to get, the proof and documentation requirements are less intensive, and the types of plants that can be protected are not limited as they are in plant patenting. That said, the protection offered is much less. For example, farmers can save and reuse seeds from protected plants or sell the seeds for use on other farms.
Types of plants covered under PVP are sexually (seed) reproduced plants, tuber propagated plants, and F1 hybrids. Fungi, bacteria, and first generation hybrid varieties are not covered.
The cost of obtaining PVP or breeder's rights protection varies. In the US the costs are around $1000 and $2000 per plant for a term of 18 years from its date of issue, 25 years for trees and vine species. If you are seeking protection outside the US, you can expect to pay a minimum of $7,700. Fees are at a minimum $5,150. This amount includes $4,382 for the application, examination, and certificate. A fee of $768 is charged upon certification issuance, and attorney fees add $2,968.
Deadline for Filing a Plant Patent
A plant patent application should be filed within one year from the first date or instance that the variety was made available or known to the public anywhere in the world. Even if the new type is described in any publication or the Internet, it is assumed that the one-year grace period has commenced.
Examples: Plant Patenting Results
The Smooth Angel Rose, a plant patented by Henry Davidson of Orinda, California, was described as follows in its patent.
"A new rose variety of the hybrid tea class distinctive in its character by being near thornless and by having blooms which open with the outer petals being a cream color and the center petals yellow-orange as hereafter shown and described. This rose is novel and distinctive from previous rose plants in the following ways: (1) near thornlessness (2) an attractive full foliage spreading plant; (3) a medium to large, tight centered, full, symmetrical, two toned cream and yellow-orange bloom. Asexual reproduction of the Smooth Angel was performed in California and was continued through succeeding propagations." The discovery of a new plant found growing in the wild is not eligible for patent protection. The courts found in 1841 that a patent cannot be granted for a "mere naked discovery."
Specifically, In re Kemper, 14 F. Cas. 286, 288 (D.C. Cir. 1841), determined that plants found growing in an uncultivated state, whether discovered growing naturally, on a cultivated plot or discovered in the woods, are not patentable.
Sometimes whether a plant is patentable is not clear. Recently, in the U.S. Court of Appeals case In re Beineke, Fed. Cir., pat application No. 2011-1459, the court found that the exception to the earlier non-patentability rules was in the newly discovered seedlings, found growing on a cultivated plot. If seedlings, they do not need to have been created by the plant breeder so long as they were discovered by the patent applicant on an area of cultivated land.
The Federal Circuit in the Beineke decision explained that "the apparent assumption underlying this [found seedling law] was that an exception was warranted for newly found seedlings because, the plant having been a seedling at the time of its discovery, it could be assumed that it was cultivated in its inception and that the cultivation of the land by man contributed to its creation."
Common Mistakes In Determining Patentability
A plant is defined by the USPTO as a living thing of natural composition. This physical form is made possible by the genes the plant possesses. These genes reproduce in a way that allows the genes to transfer to daughter plants. One common mistake is when plants are submitted as new or novel while containing these genes. New technology has made the defense at this level a standard practice. Other mistakes happen when a plant is submitted for patenting that doesn't meet the qualifications. The general guidance for determining whether a plant is suitable for patenting are:
- When compared with another plant that is related genetically, the potentially patented plant will have at least one thing identifiably different about it.
- The plant has to be new, either by cultivation in a nursery or greenhouse or a discovery in nature.
- If it's a newly discovered plant, it may enter into the patent application only if the person who first saw it is the one applying.
- Other industry experts can't have thought the plant was an obvious invention.
- The plant is not offered for sale before the application.
- The plant is not available to the public for more than one year before the application.
Frequently Asked Questions
- Does the breeder have to be represented by a patent attorney?
The USPTO recommends that all patent applicants be represented by a registered Patent Attorney or Patent Agent. However, they are required to allow and help any independent inventor, breeder, or discoverer, in prosecuting their own application if the applicant is sufficiently competent.
- How can I check to see if a plant is patented?
All patented plants are to display a tag and be listed in trade publications and catalogs with a clear statement of the patent number. Patents can be researched on the website of the USPTO at www.uspto.gov, using the issued patents search feature.
- How can I check to see if a patent was newly filed?
All patent applications are kept in secrecy until 18 months after the date of filing.
- How long does a plant patent last?
Plant patents last for a term of 20 years, issued from the date of filing.
- What does PPAF mean?
PPAF "Plant Patent Applied For," is the equivalent of "Patent Pending." It is a federal offense to knowingly or erroneously state that a plant variety is PPAF when it is not.
- How is a trademark different?
Trademark protections include word, name, symbol, and device. These are used in commerce to distinguish the products of one manufacturer or seller from goods produced or sold by another in the same market. This is different from a plant patent which serves to legally control, permit, and exclude the production of a plant variety. Trademarking is one way that those in the nursery industry receive recognition for their plants. It is often faster and cheaper than applying for a patent and is renewable every ten years. Trademarking may help a company build brand loyalty. It is an important distinction that having a trademark on a plant protects only the name of the plant, not the plant itself, as does a patent. Any person can still propagate a trademarked plant, name it something different, and still be within the lawful confines to do so.
- Can a plant be protected using Trade Secrets laws?
Yes. Plants can be protected, so long as reasonable and provable efforts have been made to keep it confidential and out of the public domain. A common example of trade secret law protecting plants in the United States is the protection of individual genetic lines of hybrid corn. In recent years, the United States court system recognized that a "genetic message" of an inbred plant could be protected by trade secret laws, subject to the provisions stated.
- Can illegal plant substances be patented?
Yes, you can patent pot. The USPTO confirmed that officials are accepting and processing patent applications for individualized varieties of cannabis that include innovative medical uses and other associated inventions for both utility and plant patenting. With the legalization and privatization of marijuana, the industry is predicted to reach $50 billion by the year 2022. The concern is rising among legal pot growers that they need to defend their creations from infringers, patent trolls, and corporations like Monsanto.
- How much does it cost to patent a plant?
For independent and designated small entities the cost to patent a plant is expected to be around $7,000. For a larger entity, the cost is around $8,000 per patent.
United States Patent and Trademark Office has set the plant patent application fees to start at $570. They are double that amount for a small entity and half that amount for a micro-entity. Allowance costs include charges for publication and other issuance fees plus attorney fees of $250. Total attorney fees from application through to a final decision add at least additional $5,000. There are no maintenance fees involved with plant patents.
United States Patent and Trademark Office has set the plant patent application fees to start at $570. They are double that amount for a small entity and half that amount for a micro-entity. Allowance costs include charges for publication and other issuance fees plus attorney fees of $250. Total attorney fees from application through to a final decision add at least additional $5,000. There are no maintenance fees involved with plant patents.
Drafting a Plant Patent
The requirements to get a patent for a plant are the same as those for utility patents. However, the implementation is less stringent. For example, the Plant Patent Act provides that "(...) plant patents will not be rejected or invalidated if the plant is not fully described or enabled." While it does require that the new variety of plant is described as thoroughly as is reasonably possible, it is not necessary for the claimed plant to be submitted to the official depositary. The common test of 'nonobviousness' is not applied in the same way to plant patents, as it is very challenging to create a new plant variety that is both resilient and asexually reproduced.
Application and Proceedings
The application and proceedings on the granting of plant patents are similar to those for utility patents. However, there are more specific requirements, including describing the included characteristics which distinguish the new plant from related existing varieties as well as all of its known antecedents.
The description given must first be presented in botanical terms but very generally. This is followed by the description given in standard agricultural language as it appears in textbooks or scholarly and trade publications. This language should be such that those dealing with the varieties of the kind of plant involved would be able to conceive of the new plant rather than the type of broad non-botanical language that is commonly printed in nursery and seed catalogs.
The description should include the plant's known parentage including an in-depth genealogy of the plant variety sought for the patent. It must point to where and in what manner this type of plant was asexually reproduced. The description should precisely identify the color —if the color is one distinctive feature. The application will contain a plant color code sheet.
If the plant originated as a newly found seedling, specifications must follow and adequately describe the conditions, including the cultivation environment and any conditions in which the seedling was found growing. This establishes that the plant was not identified in an uncultivated area.
If the plant originated as a newly found seedling, specifications must follow and adequately describe the conditions, including the cultivation environment and any conditions in which the seedling was found growing. This establishes that the plant was not identified in an uncultivated area.
The application must be filed in duplicate. This is because one copy goes to the Agricultural Research Service a part of the Department of Agriculture. They issue a separate advisory report on the patented plant variety.
Plant patent drawings are not mechanical drawings. Instead, they are photographic. Sometimes, they are artistically rendered to sufficiently emphasize all the distinctive and novel characteristics of the plant which are capable of visual representation. If color is a feature of the new plant, the drawing is in color.
Plant patent drawings are not mechanical drawings. Instead, they are photographic. Sometimes, they are artistically rendered to sufficiently emphasize all the distinctive and novel characteristics of the plant which are capable of visual representation. If color is a feature of the new plant, the drawing is in color.
The method of filing is manual. Applications are prepared on paper as the USPTO does not accept any electronic filing of plant patents. If you need help preparing and filing your plant patent, contact a lawyer through UpCounsel to help make the process easy.
Ornamental Design: Everything You Need to Know
An ornamental design patent only protects the design of a manufactured object, unlike a utility patent which protects the function and operation of an item.8 min read
What Is an Ornamental Design Patent?
An ornamental design patent protects the design of a manufactured object. It is different from a utility patent. A utility patent protects the function and operation of an item. An ornamental design patent only covers the appearance of the product.
"Ornamental" in this case means the visual appearance of a product. This is further explained in the Manual of Patent Examination Procedure. It's defined as "the appearance presented by the article which creates an impression through the eye upon the mind of the observer."
It's important to note the differences between the two types of patents. Many inventors are confused by the options. It's sometimes hard to know which option to apply for. An ornamental design patent is granted for the design of an item. It does not include anything about the way the item works. This is beneficial if you come up with an improved design for a common item.
For example, the unique embossed pattern on a baby wipe might have an ornamental design patent. The baby wipe itself would not be covered under the design patent. Only the ornamental design on the product is protected by that patent.
You might also see this patent referred to as a design patent. That is the official name on the application through the United States Patent and Trademark Office (USPTO).
The design patent term is 15 years from the date of grant. It changed from 14 years to 15 years in 2015. It was the result of the United States becoming part of the Hague Agreement Concerning the International Deposit of Industrial Designs.
When Is an Ornamental Design Patent Helpful?
If you have a new, unique ornamental design for a manufactured item, you can apply for an ornamental design patent. The patent application requires submission of detailed drawings. You must follow the technical requirements for the drawings. The USPTO describes specifications in the design patent guide.
No identical design can exist in prior art. When you submit your application, the USPTO reviewers will search existing ornamental design patents. If they find anything similar, your application will likely be rejected.
You can save time and money by searching, but many ornamental design patents aren't published online. It's smart to work with a patent lawyer who can conduct a thorough search. He or she can also review your case. During the process, your attorney will also make sure your drawings meet the guidelines.
In the past, inventors often chose not to pursue design patents. But as the patent holders have won more cases, these patents have increased in popularity. A design patent is a good idea if you have a truly new ornamental design. It prevents others from making and selling items that are too similar.
Common Uses for an Ornamental Design Patent
Ornamental design patents exist across a variety of industries. They're most commonly found in furnishings, apparel, and technology.
Computer Technology and Ornamental Design Patents
One industry that has seen a dramatic increase in ornamental design patents is computer technology. Design patents can help protect innovative and unique designs for computer peripherals, software, and equipment. A few examples include the shape and design of an iMac computer, the shape of a CPU box, or the appearance of a specific type of modem. Using an ornamental design patent to protect computer software and hardware designs will prevent other companies from producing something that looks very similar.
The technology giant, Apple, also used ornamental design patents to protect all types of intellectual property, from the user interface used in iOS, its mobile operating system, to the look and feel of the iPhone.
Patent lawyers are becoming more familiar with applying for design patents on software programs, such as specific types and designs of icons.
Why Is an Ornamental Design Patent Important?
If you create a new ornamental design, you need to protect it from theft. An ornamental design patent prevents other companies or people from copying your design. If you find that someone is copying your design, you can take legal action. Without an ornamental design patent in place, you won't have any recourse.
You can also file for more than one ornamental design patent. This option is useful if your design has multiple facets.
There are three major categories for ornamental design patents:
- Shape and proportions, which includes the actual shape and size of the design. One example is the Apple iPhone.
- Surface ornamentation, which only covers the design used on an item of manufacture. An example of surface ornamentation is a watch that includes a unique, non-obvious design. The watch or its functionality wouldn't fall under design patent protection, but the design could.
- A combination of shape and proportions and surface ornamentation, which might include a brand new style of sneaker.
Even if the design falls into one of these categories, it must also meet certain requirements. One must be able to reproduce it, and the item must be definite and not the chance result of an existing method. These requirements get a bit confusing, but think of a laser light pattern that changes randomly. You wouldn't be able to qualify for a design patent on the light pattern, but you might qualify for one on the combined appearance of the light and the item on which the light reflects.
Surface ornamentation is not the only factor for a design patent; the design must be an integral part of the item and can't just exist on its own. This stipulation allows for other manufacturers and designers to use similar designs on other products.
But the design must be ornamental to qualify, because functionality of an item doesn't qualify for a design patent. If you're trying to protect the way something works, you would need to apply for a utility patent. An ornamental design is visible during normal use of the product or when displayed in a commercial setting. You can qualify for a design patent even if the design will be primarily hidden during normal use, such as for underwear, the lining of a suitcase, or the inner sole of a shoe.
Some products qualify for both utility and design patents, so it's important to consider whether this applies to your invention. However, there are restrictions that limit double-patenting the same item, so you'll need to meet the requirements for both patent applications. There could be an option for a third legal protection, a copyright, if your design falls under the "work of art" category, and you may want to consider applying for trademark protection as well, if it includes a logo, phrase, image, word, or other design. A trademark distinguishes a provider of goods or services for easy identification.
Reasons to Consider Using an Ornamental Design Patent
An ornamental design patent has a number of benefits. The application is cheaper than filing for a utility patent, and your case will be processed quite a bit faster. The average processing time for a utility patent is three years, while a design patent will take between one and two years. You can also protect the design elements of a product, which is ideal if you're not inventing a new item but just creating a new way to present it.
Reasons to Consider Not Using an Ornamental Design Patent
The main reason that an inventor doesn't file for an ornamental design patent is if the design is too similar to others. If this applies to you, be careful. The patent holder could sue you for design patent infringement. An ornamental design patent requires your design to include novel and original ornamental features.
In order to prove ornamental design patent infringement, the patent holder would have to prove two things:
- Ornamental features covered under the patent aren't visible in prior art and that the allegedly infringing product appropriates the protected design.
- If that design is found to be appropriated, those involved in the case would look at the differences and similarities between the two products to determine whether they are similar enough to confuse an ordinary observer.
If your manufactured product has working components, you'll need to file for a utility patent. The ornamental design patent only protects the look of the product. A utility patent extends to the function, movement, and construction.
Deadline to File for an Ornamental Design Patent
The deadline to file for this type of patent depends on when you release the design publicly. If you keep it under wraps, there is no timeline. Use caution, because, during this time, you're at risk of someone else coming up with a similar idea. If that happens and the person files a patent application, you'll lose the chance.
After releasing the design publicly, you have 12 months to file an ornamental design patent application. The review process can take up to three years. However, most design patent reviews don't take that long. If approved, the filing date is the start date of your patent. It will then last for 15 years.
What Could Happen if You Don't Use an Ornamental Design Patent?
If you don't file for an ornamental design patent, other companies can legally copy your design. You don't have any protection without a patent in place. If a bigger company uses your design, it will likely sell the product at a lower price. Your company could lose a lot of money and sales as a result.
You also run the risk of someone else applying for a patent on a similar design.
Frequently Asked Questions
- What is the difference between an ornamental design patent and a utility patent?
An ornamental design patent protects the overall look and design of an item. A utility patent is more extensive. Its protection extends to the function, construction, and operation of a product.
It's hard to know whether your invention qualifies for a design or utility patent. Consider whether you need to protect the way the product works or functions. If so, you'll need to file for a utility patent. The design patent strictly covers the ornamental and unique design.
- What is protected under an ornamental design patent?
An ornamental design patent only covers the design of an object of manufacture. The USPTO defines an object of manufacture as something made by human hands. A patent protects the way the design looks. If another designer makes something similar, the patent holder can sue.
Steps to File
1. Review the existing patents.
Design patents are harder to find through online databases. Not all of these patents are published. Working with a patent attorney makes this step easier. Patent attorneys have access to more records and can find existing patents.
2. Prepare your documentation.
Filing for an ornamental design patent requires very specific documentation. The biggest portion of the application is design patent drawings. You must follow the requirements. These include views of the front, rear, top, bottom, and both sides of the design. It's also helpful to include three-dimensional views. If your design has multiple components, include exploding views.
You can create the drawings yourself or hire a professional. If you choose to do them yourself, make sure to follow the guide. Submitting incorrect images may cause your application to be rejected.
3. Finally, wait for a decision.
The review process could take up to three years.
If your application gets rejected, you can file a continued prosecution application, which is similar to an appeal. It puts your application in front of a different reviewer at the USPTO.
Sample Forms
Review an example of an ornamental patent design application before you submit yours.
An ornamental design patent is the best protection against duplication of your original design. It only covers the appearance of the item. The patent doesn't protect how your item works or is constructed. But in the right circumstances, an ornamental design patent is very useful in preventing duplication of your idea.
If you have questions about ornamental design patents, visit UpCounsel's marketplace. You can post your legal needabout design patents or anything else related to business legal and receive free custom quotes from the top 5 percent of lawyers. Lawyers on UpCounsel come from prestigious law schools and average 14 years of legal experience, including work with or on behalf of companies like Google.
Patent Cost
To obtain a patent, you could pay as little as $900 if you take the "do-it-yourself" approach, or an average of $7,200 to $11,400 if you seek help from a patent attorney. The final cost to patent an idea will depend on the complexity of the invention and the type of patent that's required.
Obtaining a patent can help you protect your invention, ensuring that others cannot use, make, or sell your product without first getting your permission.
PATENT COST
National Average Cost $8,800
Minimum Cost $900
Maximum Cost $16,900
Average Range $7,200 to $11,400
Table of Contents
Patent Cost
Average Cost To Patent An Idea
Cost to File a Patent Application
Patent Search Cost
Patent Attorney Cost
Patent Costs By Type
Provisional Patent
Utility Patent
Design Patent
Plant Patent
International Patent
Pros and Cons of Patents
Pros
Cons
Frequently Asked Questions
Poor Man's Patent
Rights of a Patent Owner
Should I Use an Attorney?
Patent Attorneys Near Me
Average Cost To Patent An Idea
The average cost to patent an idea ranges from $5,000 to $16,000+ depending on how simple or complex your invention is. An extremely simple design such as a paper clip typically costs $5,000 to $7,000 to patent, whereas a highly complex invention such as software or satellite technologies runs $14,000 to $16,000+.
COST TO PATENT AN IDEA
Type of Invention Examples Attorney Fees & Filing
Extremely Simple Paper clip, diapers, electric switch $5,000 – $7,000
Relatively Simple Umbrella, board game, toothbrush, flashlight $6,000 – $8,000
Minimally Complex Camera, power tool $8,000 – $10,000
Moderately Complex Riding lawn mower, cell phone, RFID devices $10,000 – $12,000
Relatively Complex Shock-absorbing prosthetic device $12,000 – $14,000
Highly Complex Satellite technologies, MRI scanner $14,000 – $16,000
Software Business methods and programs, automated systems $16,000+
United States Patent Filing Example Documents
Cost to File a Patent Application
According to the United States Patent and Trademark Office (USPTO), the basic cost to file a patent application is $300. However, if you are a small entity, the price is $150, and the micro entity fee (for an individual) is just $75.
The main distinction between these costs is whether or not you take the "do-it-yourself" approach or seek help from a patent attorney. Of course, each scenario is unique in terms of the steps involved. Here is a timeline of every step involved if you decide to hire an attorney to help:
COST TO FILE A PATENT APPLICATION
Item Average Cost
Patent Search $800 – $3,000
Provisional Patent Application Filing $1,000 – $3,500
Utility Patent Application $5,000 – $9,000
Utility Patent USPTO Filing + Search + Examination $1,000
Illustrations for Utility Patent Application $400
Total $8,200 – $16,900
USPTO Trademark & Patent Registration Filing
Patent Search Cost
Before your application is prepared and sent to the USPTO, you can expect to pay anywhere between $800 and $3,000+ for professional attorney patent searches. If you would like to save money, you can conduct this search on your own; just make sure you take all of the necessary steps.
PATENT SEARCH COST
Item Average Cost
USPTO Search Fees $150 – $650
USPTO Examination Fees $150 – $600
Self Search Free
Professional Attorney Search $800 – $3,000
The same is true for when it comes time to draft your application. To do so, conduct some research so that you have a more thorough understanding of the process. Next, find a patent that is similar to yours so that you can use it as a template.
Using the template as a guide, be sure to include your drawings, features, phrases, and claims. Once you're done, bring everything you have to your lawyer. While you will still need to pay for his/her time, you'll significantly reduce the final cost.
Patent Attorney Cost
When you hire an attorney to prepare a new patent application, you can expect to pay between $3,000 and $5,000 on average plus the USPTO fees. Most experienced lawyers will charge between $200 and $400 per hour.
Unlike a family lawyer, for instance, patent lawyers typically undergo specific legal training and hold a technical degree. In fact, when a patent attorney specialized in industries such as biotechnology or other high technology fields, often have a Ph.D.
When dealing with complex cases, patent lawyers may also manage a team of experts, including illustrators, technicians, and paraprofessionals. In these cases, the final cost of a patent can be fairly expensive.
Businesswoman Signing Patent Application With Attorney Present
When paying a lawyer fee in regards to a patent, the rate tends to include:
A professional patent search of the USPTO database which will help you determine whether or not a similar patent exists and what that means for your invention.
The actual drafting of the patent application itself. When a lawyer prepares your application, this will help ensure that all necessary information is included and that formatting requirements are met.
Any negotiating with the USPTO. The majority of patent applications involve complicated steps and measures that may require your patent lawyer's expertise to clarify. If your application is initially rejected, your lawyer will also defend your invention. Depending on the number of rejections and whether or not an appeal is involved, this can drive up the final cost.
Patent Costs By Type
The type of patent you apply for will also impact the cost. For example, a provisional patent can cost up to $3,000, whereas a utility patent can cost up to $15,000 or more. Each type of patent is best suited for varying scenarios.
TYPES OF PATENTS & COSTS
Type Average Cost
Provisional Patent $1,500 – $3,500
Utility Patent $5,000 – $15,000
Design Patent $2,000 – $3,500
Plant Patent $4,500 – $8,000
International Patent $100,000+
A utility patent is ideal when you want to protect a tangible item or product. This is the most expensive type of patent, costing between $5,000 and $15,000+.
A design patent is the best choice when you want to protect the aesthetics or design of an item based on its appearance and function. In this case, expect to pay an average of $3,000.
Being the least expensive, you should seek a provisional patent when you are still developing your invention. This will provide you with patent-pending status as you make progress and prepare your nonprovisional patent application. This type of patent costs an average of $2,000.
A plant patent is relatively unique in that it protects inventors of new plant types which are reproduced under specific conditions. Depending on your invention and the processes involved, expect to pay between $4,000 and $8,000 for this type of patent.
Provisional Patent Cost
A provisional patent is critical when you want to protect your rights but are not yet ready to invest in a patent. Overall, you can expect to pay between $1,500 and $3,500 with $70 to $300 going towards USPTO filing fees and $1,000 to $3,500+ for attorney fees.
Provisional patents require that you have enough information to prove that your invention is well thought out and that enough work has been completed to ensure that the invention works.
Utility Patent Cost
A basic utility patent, also called a non-provisional patent, will cost between $5,000 and $15,000 to file. USPTO filing fees are $330, the patent search fee is around $540, plus a $220 examination fee, driving up the total cost to over $1,000, not including attorney fees. Once you file a provisional patent application, you have one year to register for a utility patent.
Maintenance Fees
After three years, you'll also be required to pay maintenance fees which are currently $980. However, the amount you spend will depend on your patent and entity structure. For example, maintenance fees can cost as little as $400 or as much as $7,500.
$980 after 3 1/2 years
$2,480 after 7 1/2 years
$4,110 after 11 years
Attorney Fees
While working with an attorney to obtain a utility patent, expect to pay between $3,000 and $10,000+. It's highly recommended that you seek the assistance of a lawyer, especially when your invention is somewhat complicated.
Although lawyer fees account for the majority of a utility patent's cost, this is an essential step in regards to the longevity of your invention -- you'll want to ensure that everything is completed in a manner that is accurate and legally binding.
Design Patent Cost
A design patent protects the appearance of an invention, particularly in regards to manufactured items, fashionable goods, and the shape of devices; especially medical devices. Expect to pay an average of $2,000 to $3,500 for a design patent, including the examination fee and all lawyer fees.
For a design patent, the USPTO filing fees are between $500 and $200, in addition to search fees that cost between $40 and $160, an average examination fee of $150. In this case, a patent lawyer tends to cost between $1,000 and $3,000.
Depending on your invention, it may qualify for both a design and a utility patent. It's important to discuss your invention with your lawyer, as a design patent can be limited, whereas a utility patent is broader, increasing overall protection.
Plant Patent Cost
To obtain a plant patent you can expect to pay between $4,000 and $8,000, which applies to newly-invented plant types. These patents do not cover bacteria, and some plants do not apply, so make sure you understand what qualifies and what doesn't.
The quoted cost above includes patent attorney fees, as well as the filing fee (costing between $50 and $200), as well as the examination fees ($150 to $650), and the search fees ($100 to $420).
While this type of patent is rare, with less than 1,200 applications submitted each year, this is an appropriate type of patent if you're a horticulturist who has made a unique discovery.
International Patent Costs
As you'd expect, protecting your invention on an international scale is the most expensive route. In fact, this type of patent can cost up to $100,000 or more. This type of patent is filed under the Patent Cooperation Treaty (PCT).
Pros and Cons of Patents
When you have an invention that's worth protecting, the advantages most often outweigh the cons.
Pros
Just some of the advantages associated with this process include but are not limited to:
An edge that your competitors won't have, as you will be legally protected in regards to the design and function of your invention. Since you will be able to license your invention, this can also lead to higher revenue.
An increased level of security, as this investment will prevent others from stealing your unique idea. Once you obtain your patent, your invention becomes your intellectual property, motivating you to push your business towards long-term success.
Greater credibility, helping you strengthen your brand in a competitive market. This is particularly important in regards to your business value, especially if you plan to sell your idea in the future.
Cons
In comparison, the disadvantages to consider include:
A relatively lengthy and often complicated application process that for some, lasts years.
The risk associated with total transparency. When you file a patent, you are required to highlight every detail of your invention. This is also why having legal support is beneficial -- especially if you ever need to defend your patent.
Maintenance fees that are required three times throughout a patent's life. This drives up the final cost.
The fact that coverage is limited to that specific product in regards to its design and/function.
Frequently Asked Questions
What is a poor man's patent?
While this is an interesting theory, it is no longer valid. If you hear about a poor man's patent, this refers to the process of drafting a document that outlines your invention.
The idea is that upon sealing and mailing the document to yourself, you could show a date based on the postmark. This would confirm the time in which your invention was first in your possession.
What is the cheapest way to get a patent?
Of course, the cheapest way to obtain a patent is to complete this process yourself. To do so, you should take critical steps.
Keep clear, detailed records. It's recommended that you record every step involved in the process of your invention, filling notebooks that are dedicated to your idea.
Before you begin the process itself, make sure that your invention qualifies for a patent. For an invention to be patentable, it must be statutory, new, useful, and non-obvious.
Explore the demand for your invention in terms of its commercial potential. There's no point in spending hundreds if not thousands of dollars on a patent if the marketplace won't respond.
Conduct a thorough patent search to ensure that you are not impeding on a patent that has already been issued.
Prepare your application and file with the USPTO. Take your time with this step, as you'll want to ensure that everything is filled out and filed correctly.
What is the average cost to obtain a patent?
If you're a small entity, the filing fee will cost $130 on average. Depending on the type of patent you seek, that will dictate the final cost. For example, with legal support, you can prepare and file a high-quality provisional patent application for an average of $2,500.
What rights does a patent owner have?
As a patent owner, you have specific rights about your invention, which include:
The right to license your patent to third-parties and in turn, collect royalties
The right to sell your patent and invention in general
The right to sue those who infringe on your patent
The right to manufacture and sell products covered by the patent
Why should I use a patent lawyer?
By improperly filling out your application or by missing any critical information can hurt your chances for patent approval. Most patent attorneys have advanced technical degrees that allow them to understand your invention in detail. While an attorney will drastically increase your final cost, they can significantly help during the application process.
How can I cut down the costs on my legal bills?
One method is to research and fill out a patent application on your own, then request an attorney to review it in detail before sending it off to the USPTO. Also, you could start the patent search process online on your own and potentially save a couple of thousand dollars. The further you get in the process on your own, the more of a discount the attorneys may offer.
Should I register a provisional patent application first?
Many inventors opt to file a provisional patent because it gives you an extra year to get your final paperwork in order. During this period you can further develop your invention, prepare the drawings, and do additional market research.
Should I get a trademark too?
A trademark protects a name or a logo, while a patent protects an idea or invention. Registering a trademark adds a layer of protection for your brand and limits competitors affecting your profits in the long run. Once you register your trademark with the USPTO, you can use the ™ symbol, and once approved 10 to 14 months later, you can use the ® symbol.
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