Page 9 - Grapevine July-August 2019

In The Winery

comes from an Executive Order issued by President
Herbert Hoover in 1930.
Because plant patents apply only to the whole
plant and not parts thereof, they must be claimed
in their entirety. In other words, your patent
should not claim “a new variety of grape charac-
terized by…” or be titled, “A New Variety of Grape,
named ‘XYZ,’” because it is not the grape itself that
is subject to the patent, but the entire grape vine.

This raises the question of why a new variety
has to be “named” at all. The answer lies in The
International Convention for the Protection of New
Varieties of Plants (generally known by the French
acronym “UPOV Convention”). As a signatory to
this convention, the United States requires the
applicant to include a “variety denomination” for
the new plant. The examiner must evaluate this
denomination to ensure it is not identical with or
confusingly similar to other names utilized in the
United States or other UPOV member countries
for the same or a closely related species. Further
the proposed denomination must not mislead the
average consumer as to the characteristics, value,
or identity of the patented plant. If this language
seems familiar, it is essentially the same standard
that is applied for evaluation of a trademark appli-
cation.
Conclusion

Plant patents are a useful tool to protect new vari-
eties of grape vines. Growers should be aware not
only of the ability to protect their discoveries, but
of the basic requirements to obtain patent protec-
tion and the actions that may potentially jeopardize
their opportunities to seek protection. A knowl-
edgeable patent attorney, engaged early in the pro-
cess, can help to identify those new varieties that
are eligible for a plant patent and to avoid waiving
potential patent rights.
Brian Kaider is a principal of KaiderLaw, an intel-
lectual property law firm with extensive experience
in the craft beverage industry. He has represent-
ed clients from the smallest of start-up breweries
to Fortune 500 corporations in the navigation of
regulatory requirements, drafting and negotiating
contracts, prosecuting trademark and patent appli-
cations, and complex commercial litigation.

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