
Libby Babu Varghese
Counsel
212-784-6922 lvarghese@sh-law.comFirm Insights
Author: Libby Babu Varghese
Date: November 6, 2019
Counsel
212-784-6922 lvarghese@sh-law.comCharlotte’s Web Holdings, Inc. (CWB Holdings) recently became the first hemp cultivator to secure a plant patent. The patent is for “a new and distinct hemp cultivar designated as ‘CW2A,’” which is capable of producing up to 6.24 percent CBD and only 0.27 percent THC.
A plant patent is an intellectual property right that protects a distinct and new variety of plant. It allows the patent owner to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the reproduced plant, or any of its parts. The term “asexual reproduction” refers to the propagation of a plant without the use of fertilized seeds to assure an exact genetic copy of the plant being reproduced.
Patent rights for plants are governed by Title 35 United States Code, Section 161. It provides:
Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title.
As outlined by the U.S. Patent and Trademark Office (USPTO), the following requirements must be satisfied to achieve patentability:
A plant patent precludes others from asexually reproducing, selling, offering for sale, or using the patented plant or any of its parts in the United States or importing them into the United States. A plant patent is regarded as limited to one plant, or genome. The term of a plant patent is 20 years from the filing date of the patent application. As with utility patents, upon expiration of the patent, the subject matter of the patent enters the public domain.
The USPTO emphasizes that prior to pursuing a patent, applicants should be thoroughly familiar with the characteristics of the plant, and must assure that the plant is stable. As described by the USPTO, invention for purposes of a plant patent involves a unique two-step process:
In many ways, the process for preparing and filing a plant patent application is similar to that of a utility patent. The specification must contain as full and complete a botanical description as reasonably possible of the plant and the characteristics which distinguish that plant over known, related plants. In addition to the averments required for a utility application’s oath or declaration, plant patent applicants must also state that they have asexually reproduced the plant. If the plant is a newly found plant, the oath or declaration must also state that the plant was found in a cultivated area.
While plant drawings are typically photographic, they may also be presented in other mediums, such as in permanent watercolor renderings. As stated by the USPTO, “such drawings are not mechanical drawings and should be artistic and competent in their execution.”
Pursuing a plant patent can be invaluable, particularly in the growing hemp industry. However, it is also a complex legal endeavor. For guidance, we encourage businesses to work with counsel experienced in both intellectual property and cannabis law.
If you have any questions or if you would like to discuss the matter further, please contact me, Libby Babu Varghese, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.
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