Plant Patents

Under United States patent law, a patent may be obtained for mutations, hybrids, seedlings, and sports of known, cultivated plants. A sport is a new type of growth on a known plant such as a flower of a different color than is usual for that plant or a different growth pattern in the plant's branches or stems. If a new plant is not the result of breeding efforts but rather originated from a seedling that was discovered, the environment and conditions must be described to establish that the plant was found in an area of cultivated plants and not in the wild. A wholly new plant discovered in the wild may not be patented. In order for a new plant to be patented, it must have at least one significant and distinguishable characteristic that differs from existing varieties of the plant. Plants that are reproduced through their tubers, such as the Irish potato and Jerusalem artichokes, are specifically designated by the patent statute as ineligible for a plant patent.

State Copyright Law and Preemption

The law of copyright in the United States has become primarily federal since implementation of the Copyright Act of 1976. Thus, the rights conferred under copyright law are of a federal character and are vindicated in federal court. However, state law continues to fill in areas that are not explicitly governed by the federal Act. The areas that were not pre-empted by the passage of the Copyright Act are common law copyright and protection of pre-1972 sound recordings.

Publication

Publication was the key to obtaining federal copyright under the Copyright Act of 1909. Publication is still important to copyright owners but it is no longer the key. Publication is defined in the Copyright Act of 1976 as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication."

Patent Law

To meet the utility requirement, an invention must provide a specific, known use that differs from the prior art, which is the body of information from which it is determined whether an invention is new; speculative or possible future utility is not sufficient. Application requirements set out by the Patent Act provide that the patent applicant describe in detail the invention, how to make it, what it does, and how it is used, which if properly complied with should make it clear what the claimed utility of the invention is. It is not necessary that the use represent an improvement over the prior art; however, to meet the utility requirement, an invention must work as claimed.

Copyright Joint Authorship and Ownership

According to the Copyright Act, the authors of a joint work jointly own the copyright in the work they create. A joint work is defined in the Copyright Act as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." Courts have interpreted this to mean that all putative joint authors must intend to make a joint work at the time of the creation of that work. If joint authorship exists, the authors of the "joint work" will be recognized as the co-owners of the copyright in that work. The contributions to a joint work do not need to be equal in quality or quantity, they only need to be copyrightable contributions and the parties must agree that the work is a joint work.