This article is written by MS. KHUSHI BAJPAI, a 2nd year law student of SYMBIOSIS LAW SCHOOL. NOIDA
Plant patent
A patent is typically a legal document issued by the government that grants an inventor the sole authority to create, use, and market an invention for a predetermined period of time. By giving them exclusive rights to profit from their innovations, the patent system hopes to inspire inventors to advance technology.
As you may have gathered by now, plant patents are related to plants. Specifically, the gorgeous, vibrant, and alive species that cover the earth. People who have created new plant hybrids typically receive plant patents. Additionally, it is granted when a new plant variety has been found and successfully reproduced by the individual. We might question why each plant has a patent. Finally, not all plants are protected by patents. The patent office, for example, won’t grant a patent for a tuberous plant. The plant patent may be held for a maximum of 20 years.
The Patent and Trademark Office views plants as living things with their own unique natural composition. The genes that a plant carries allow for the plant’s inherent composition. These genes can multiply asexually, allowing them to be passed on to daughter plants.
Which plants are eligible for patents?
Mutant, hybrid, and transformed plants are the most naturally occurring types of plants that have been granted patents. One of two sources, either one that is discovered naturally or one that is produced, can result in a mutant plant. Moreover, bacteria do not count as a plant; only algae or large-scale fungi do.
Why are patents strewn about?
A plant patent is a form of intellectual property that forbids others from using or duplicating the distinctive characteristics of a unique or original plant. By banning competitors from using the plant, a plant patent might help an inventor increase their revenues while their invention is still under patent protection. Potatoes and other tubers are also ineligible for plant patents, as are any plants that are special simply due to their growing environment or soil quality.
How do patent plants operate?
A plant that is patentable may be natural, bred, or somatic, which is produced from the plant’s non-reproductive cells. It can be made, invented, or found, but only in an area where it is farmed will a plant be eligible for a patent.
Benefits of patent plant
- The ability to prevent others from producing, selling, or importing your plant without your consent is provided by a plant patent, which also grants you protection for a set amount of time that enables you to fend off competitors. After that, you can use your invention on your own.
- As an alternative, you can sell your patent or grant licences to others so they can use it. This could generate substantial money for your company.
- In fact, some companies merely exist to combine the authority they have obtained licences for, possibly in succession with a registered design or trademark.
How to file a patent plant?
Determine who owns what in step one.
It is important to know who created or found a new plant. A plant invention could require multiple steps to create because there might be one or more co-inventors.
Step 2: determine a plant’s eligibility for a patent
A plant must fit the statutory criteria of what is protectable in order to be granted a patent. Any novel type of plant, including cultivated sports, mutants, hybrids, and recently discovered seedlings, if it is not a tuber-produced plant or a plant discovered in an uncultivated state, may be invented by a human and asexually reproduced.
It needs to reproduce sexually. simply signifies that the plant grows from seeds that were not fertilized. Ideally, it can be replicated without the use of artificial means.
Step 3: Identify the patentability of
The plant must meet the following criteria in order to be patentable:
• Eligible: It must have been created or found in a fully mature state, and asexual reproduction must have occurred.
• No prior public use or sale: This signifies that the plant was not previously patented, in use by the general public, for sale, or otherwise accessible to the public as of the effective filing date of the patent application.
• Novel: No one is allowed to see the plants.
• Non-obvious: As of the claimed plant innovation’s effective filing date, the invention should not have been evident to someone with ordinary ability in the relevant field.
Step 4: the plant patent application draught
the illustrations or photos that highlight the most unique and distinguishing characteristics. Everything from the needs that is specified in the claim language should be depicted in the illustrations.
Step 5: submitting a request for a plant patent
All plant components should be carefully examined for at least one growth cycle prior to application, and any observations or findings should be clearly documented and submitted with the application.
What is required to submit a plant patent application?
• A cover letter that lists the materials.
• Form 1 applications for patent grants.
• Statement and undertaking in form 3;
• Complete or tentative specification in form 2.
• Form 26 Power of Attorney.
• Only Indian citizens should use Form 5 to declare their inventorship.
• Form 18’s request for examination.
• Required for publication;
• Required statutory costs (cheque/DD).
Indian patent application
The real inventor of the invention, the administrator of the right to appeal, or a legal agent of either may apply for a patent in India under the terms of the Patent Act of 1970. The individual who will receive the grant is the one who first applies for a patent. In contrast to the initial applicant, a previous inventor who applies will not be granted the patent.
A person cannot claim to be the original and true inventor if they only described the idea to someone else who then put it into practice and created the creation. It is not prohibited for a citizen of a foreign country to apply and obtain a patent in India.
Act to safeguard plant varieties
Act to safeguard plant varieties
The Power of Plant Variety and Farmers Right Act, 2001 is a law passed by the Indian parliament to promote the creation of a suitable system for the stability of plant species, the advantages of farmers and plant breeders, and to encourage the growth and cultivation of new plant species.
patent application for plants
The appropriate office of the patent department should receive a patent application in the prescribed form and with the authorized fee. According to the geographical limits where the applicant—or the first-mentioned candidate in the case of joint applicants for a patent—habitually resides, has a domicile, has a place of business, or the location from where the design originated, an application is expected to be filed. If the patent applicant or party to a proceeding does not have a place of business in India, the appropriate office will be determined by the address for service in India provided by the applicant or party.
How can one tell if a plant qualifies for patenting?
- The plant must be different from all other plants on the planet. Its composition or manufacturing must differ in at least one way. There must be at least one difference between the plant and another plant that is roughly similar when comparing them.
- A fresh plant is required. The newly discovered plant that was made by an individual can enter the patent application procedure if the person who first discovered or created it. It can be regarded new either by having been created in a nursery or greenhouse or a unique one due of its discovery nature.
- Other members of the plant industry must not have considered the innovation to be apparent when the plant patent application was being submitted.
• The plant shouldn’t have been sold before the patent application, and it shouldn’t have been accessible to the general public for more than a year. This one-year period covers both the plant’s sale and its description in a publication, such a botany journal.
How to check the quality of the applicant for a patent?
• The applicant must have first successfully used asexual reproduction techniques to test the plant’s quality.
Asexual reproduction additionally results in offspring that are genetically identical to the parent plant.
•For instance, the patent office recognized corms, runners, grafts, cuttings from roots, and plants produced through layering as examples of asexual reproduction in plants.
• Some persons who are looking for plants use ordinary-colored drawings rather than photographs to describe the plant to the Patent Office. They may also opt to have these drawings made by a professional artist. Plant patents are similar to utility and design patents in this regard.
Document required for a plant patent
• Two copies of the application (form 1)
• A duplicate of the provisional or overall specification. If a provisional specification is recorded, it must be backed up within a year by a complete specification.
• A duplicate plant drawing, if necessary.
• A replica of the invention’s abstract.
• Try listing each international patent application’s number, filing date, and present status.
• Priority document in convention application, upon controller delivery.
• Declaration of inventorship when a complete specification follows a provisional specification or when the convention applies.
• An attorney-in-fact (if filed through the patent agent).
• Fees, which must be paid in cash, check, or demand draught.
Form 1: application for grant to patent
• The applicants’ names and addresses must be included in this application.
• The candidate’s name and address.
• Details pertaining to prior patent applications linked to the current invention, which you or any recognized body have filed; some remarks; and other information.
Form 2: proviso/full specification
To submit your patent stipulation, utilize
Form 2. Depending on the sort of patent application you are filing, it can be a provisional or a full patent specification.
Form 3: Report and Undertaking is used to provide information on patent applications made in other nations for the prevailing invention under Section 8 of the Act. You would commit to keeping the patent office informed in writing of any information pertaining to similar applications for patents registered outside of India.
Form 25: Statement of Inventorship
The inventors of the prevailing patent application are identified using this application.
Power of attorney,
Form 26 if submitted via the patent agent
The power of attorney to the patent agent to handle the patent application, correspondence, and communication on your behalf is specified in Form 26.
Conclusion
Despite having a lesser yield, traditional plants are more suited to the local environment and do not require the same number of pesticides and fertilizers as crops. Furthermore, despite the low yields, there are fewer chances that the farmers will incur debt because the crops they use are almost free and readily available in the area. While the previous crop’s output was minimal, there was no reason for concerns because seeds were still readily available.
India has a well-balanced approach when it comes to the regulation and assessment of IP rights for GM plants. India has established policies that are harsher than those specified in the TRIPS Agreement in order to protect intellectual property, and it also has a robust regulatory framework in place. The resistance to preserving plant varieties because they were created using patented genes has not yet been fully resolved. It follows that it is clear how other stakeholders, such farmers, small enterprises, and so forth, are impacted by this increase of patent rights. Until such a posture is decided, the PPVFR Act effectively closes the loophole.
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