Utility patents aren’t the only form of patent, much less the only form of intellectual property.  While not a frequent subject of discussion in comparison to its much better known cousins, the utility patent and the design patent, the plant patent is still relevant and provides a useful example of how to protect subject matter that might not be susceptible to protection as a utility patent.

On a recent episode of the Inside Trader Joe’s podcast, the hosts discussed how intellectual property even extends to the most prosaic of produce, the apple.  Discussing varieties of apples, the discussion focused on how “holding a patent for a type of produce is becoming really important.” Their subject was the Opal apple, a Golden Delicious/Topaz cross, which is the subject of U.S. Plant Patent 15,963.  Apples are a frequent plant patent subject, and there’s even a tiny bit (or bite?) of apple plant patent litigation.  The most recent reported plant patent case I found (2006) was also about apples—a particular variety of Golden Delicious referred to as the “Scarlet Spur.”

The Trader Joe’s podcast discussion of how plant patents serve a meaningful role in developing new varieties of produce is a good reminder that not everything needs to be a utility patent.  (For that matter, not everything needs to be patented in the first place, a fact illustrated by the widespread success of open source software.)  

More relevant to current debates, the Plant Patent Act of 1930 was passed in part to address the concern that plants, as products of nature, were not patentable.  As Congress continues to consider flawed proposals to amend the utility patent statutes—primarily to address concerns over medical diagnostics and similar innovations that rely on application of a law of nature—the Plant Patent Act provides an example of an alternative approach to protecting a valuable idea.  

This alternative variety of reform has the benefit of being an approach that doesn’t threaten the significant benefits [1][2][3] that modern § 101 law has brought to patent law in other areas of technology.