Page 9 - Minnesota Vol 8 No 4
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the client’s “invention” in this curious fact situation: (1) utility patent, (2) plant patent and (3) the Plant Variety Protection Act (PVPA).
A U.S. utility patent can protect a plant or for that matter other natural things like genes (maybe).  e caveat is that the plant can’t just be dug up or just found, even if lightning caused the plant to have brilliant red, blue  owers with a tinge of silver.  e plant found and dug up by your client can’t be protected as is. Likewise, a gene identi ed and isolated from the plant is probably not protectable.  ere has to be some human modi cation (ba- con grease) which either changes the plant internally or aids it in its new characteristics.
A U.S. utility patent could be cra - ed to protect a method of growing or nurturing with bacon grease a plant struck by lightning, and could also in-
clude a plant whose genetic structure has been altered due exposure to ba- con grease.
Plant patents are statutorily di er- ent from regular patents (35 U.S.C. § 161). Plant patents exist to protect asexually reproducible plants. An asexually reproducible plant is one which can reproduce without seed, such as by gra ing, or taking a cut- ting and having it root in soil, but not tubers (e.g., potatoes). A plant patent can be obtained by discovering a “mu- tant” but the mutant had to be devel- oped under the client’s control.  us, the plant dug up in the forest is not eligible, while the plant introduced to bacon grease is eligible if (as in our example) it reproduces without seed.
Protection under the PVPA (7
U.S.C. §§ 2321-2582) does not techni- cally result in a “patent” (although in many respects it gives similar protec- tion) and does not result in a certi - cate of protection issued by the U.S. Patent and Trademark O ce.  e PVPA is administered by the U.S. De- partment of Agriculture and provides protection for varieties of sexually reproducible plants (those that repro- duce via seeds) and for tubers. Ac- cordingly, the PVPA provides some form of protection for those plants excluded by the plant patent statute.  ere are exemptions to protection which makes a PVPA certi cate sig- ni cantly di erent from a patent.
 is is a very cursory treatment of the extremely complicated  eld of protecting “natural” discoveries.  ere are many di erent views on what should be protected, how to do so, and for how long.

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