Can I patent my new plant?

While plant breeder’s rights are an effective type of IP right for protecting a new plant variety, sometimes you can obtain protection of a plant or plant product through a patent.

What plants are patentable?

A patent would only be granted for plants that meet all the following tests:

  • You developed the plant (or its components or material) through a technical intervention such as breeding, mutation or genetic engineering. Something that's naturally found in the environment can't be granted a patent -- you can't just discover a new plant and get patent protection for it
  • Your invention has a demonstrated use. This means that there must be an actual use for an invention rather than just speculation as to future uses
  • The matter is inventive, in that it needs to be different enough when compared to what already exists
  • The matter is new in the sense that it hasn't previously been publicly available
  • You've fully described your invention in your application, giving enough detail to allow other people working in the same area of technology to make the product or perform the process.

What plant material can be patented?

  • New plant varieties
  • Genes or chromosomes that you've developed through mutagenesis or genetic engineering
  • Reproductive material such as seeds, whole plants, cuttings, cells or protoplasts
  • Products from plants including fruit, flowers, oils, starches, chemicals or pharmaceuticals
  • Plant material such as cell lines that are used in industrial processes
  • Methods or processes for using, testing or producing plants or plant products, including:
    • Genetic engineering techniques
    • Plant tissue culture
    • Cell and protoplast culture
    • Mutagenesis. 

How do I describe my invention in my patent application?

As part of your patent specification, you'll need to capture how your invention works. The patent specification must include a full description of both the:

  • Plant or plant product itself
  • Best method to perform the new process or develop the new plant.

There must be sufficient, clear information to allow a specialist to make the plant or plant product without having to invent it again themselves. This means that a person who works with the particular technology must be able to reproduce the plant or plant product from the directions given in the description.

See below for further guidance.

The plant must be described fully, with particular emphasis on the characteristics that are significantly different from known and related plants. This enables the plant to be clearly identified and distinguished from known close relatives.

You'll need to include:

  • The full morphological, biochemical and taxonomic characteristics
  • If available, a full description of any scientific testing of characteristics, such as isozyme analysis or DNA profiling. All biochemical data presented MUST be fully explained, including the conditions under which the biochemical assays were run. All figures must incorporate scales for graphs.

We recommend that you make a deposit of a specimen to an International Depositary Authority to help describe your plant.

You must also provide a full description of exactly how the plant is prepared. This ensures that other people are able to make a plant once the patent period is over.

The characteristics of the gene introduced into the plants must be described (preferably including the complete sequence of the gene), as well as the best method of transformation, regeneration and selection of the transformed plant or plant parts (such as protoplast or pollen).

The host plant material must also be fully described and be readily available to the public.

You'll need to fully describe the mutant plant's characteristics. We recommend that you also make a deposit to an International Depositary Authority.

The parent strains must also be fully described and readily available to the public.

The method of mutagenesis (such as chemical or UV radiation) must be disclosed, as well as the method of selecting or obtaining the mutant plant.

We recommend that you make a deposit of your invention to an International Depositary Authority to assist with description.

You'll need to fully describe the hybrid seed characteristics. Making a deposit to an International Depositary Authority is also recommended. The parents must be fully described and be readily available to the public. The different crosses conducted must be disclosed.

We recommend making a deposit to an International Depositary Authority to assist with description.

Where the invention is a plant product, such as a chemical or fruit, there must be sufficient details in the specification for a person working in the technical field to identify and repeat the invention.

This includes a full description of the source plant, which needs to be readily available to the public. Also describe how it's grown, and how the product is produced and isolated.

If the product is new, then you should also fully describe its characteristics.

Make a deposit at an International Depositary Authority

It can be challenging to fully describe your plant, so we recommend that you deposit a specimen of your invention, then refer to it in your specification. This can make it much easier for us to assess your application. A deposit is also helpful where a host, parent or source plant isn't readily available to the public.

Under the Budapest Treaty, you can deposit microorganisms and other biological material inventions at an International Depositary Authority on or before the filing date of the provisional or standard application in Australia.

How to patent biological inventions

Need help?

We've provided some general advice on this subject.

If you'd like some tailored advice on how to patent your plant variety, we recommend you speak to a qualified person or engage an IP attorney to assist you.

Engage an IP attorney