Page 6 - Grapevine July-August 2019

In The Winery

Plant Patents in the Wine Industry

By: Brian D. Kaider, Esq.
W hen most people think of patents, they ers and asexually reproduces any distinct and

new variety of plant, including cultivated sports,
think of new machines, new medicines,
mutants, hybrids, and newly found seedlings, other
or improved manufacturing processes.
These inventions are protected by “utility patents.” than a tuber propagated plant or a plant found in
Some people may also be familiar with “design an uncultivated state, may obtain a patent there-
patents,” which protect a novel ornamental design, fore…”
such as the front grill of a luxury car. But, there is
a third class of patents with which most people are There are some key words in that statute, most
unfamiliar, “plant patents.” As the name suggests, importantly, “asexually reproduces.” Asexually
plant patents protect new plant varieties, such as a propagated plants are not grown from seeds, but
new strain of wine grape vine. by rooting of cuttings, layering, budding, grafting,
inarching, etc. Plants capable of sexual repro-
Not all plants are eligible for patent protection, duction are not excluded from patent eligibility if
however. United States Code, Title 35, Section they are also capable of being reproduced asex-
161 provides that: “[w]hoever invents or discov- ually. “Tuber propagated plants” are those that

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