In addition to adhering to the general requirements of patentability, the following must also be true:
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.
You can search for plant patents in the following databases :
The following libraries in the U.S. have digitized plant patents to make them publicly available:
Due to the importance of color rendition of plant patents, they are distributed to PTRCs and retained in paper format. They can be searched via the USPTO electronic databases--PatFT (granted patents), AppFT (patent applications), and on the discontinued CASSIS USAPat (optical discs) (2000 – 2011) ; however, those images are only black and white. Plant patents were distributed on color microfiche from 1991 – 1999, which included the entire backfile.
The UCF Library has the color microfiche backfiles up to 1994 (U.S. Documents fiche, call number C 21.13:) , and the paper copies with color photos from November 1994 forward.