Wants to Patent Seeds

orchid donated to Dear Rich headquarters

Dear Rich: My wife and I have created seeds for a new strain of tomatoes. We started with heirloom seeds but used some secret gardening ideas and selective breeding to create a hardy, vigorous new breed. How do we go about patenting the seeds? There are two approaches to patenting plants. A novel, distinctive plant created by asexual reproduction (by grafting or cloning), can be protected under the Plant Patent Act (sometimes referred to as a "plant patent"). If a plant cannot be duplicated by asexual reproduction, it cannot be the subject of a plant patent.
So how does Monsanto patent seeds? As an alternative to plant patents, companies such as Monsanto often seek utility patents (the most common type of patent and commonly associated with drugs, machines, and inventive processes) to protect seeds. That's right, a human-made plant can be the subject of a utility patent. These are for plants that can be reproduced either sexually (by seeds) or asexually. To give you an example, utility patents have been issued for elements of plants such as proteins, genes, DNA, buds, pollen, fruit, plant-based chemicals, and the processes used in the manufacture of these plant products. To obtain a utility patent, the plant must be made by humans and must fit within the statutory requirements (utility, novelty, and nonobviousness). The patent must describe and claim the specific characteristics of the plant for which protection is sought. Sometimes the best way to meet this requirement is to deposit seeds or plant tissue at a specified public depository. Here's a good primer on plant patent protection (and here's how the dark side presents the issues).
That sounds like a lot of work. Obtaining a patent on your seeds will present a lot of expenses and hurdles so it's best not to start the process unless you're sure you can make money from your plants and you're pretty sure that you've created something new. If you're unsure, consider an evaluation by a patent attorney. Also, be aware that patent protection for seeds is not popular with everyone (particularly after this recent decision).