I am no expert on this topic.
You really need to be a high level lawyer to sort through it all.
But we can give it a hell of a try… 
Please feel free to add more facts and correct anything that may be wrong, but, please cite everything you may claim, so we can see the source of your claims.
Please do your best to refrain from adding an opinion without at least citing the source for that opinion.
It would be best if we can keep this as fact-based as possible.
NOTE: These are great starting references to read:
- https://pennstatelaw.psu.edu/_file/aglaw/Plant_Patents.pdf
- http://www.uspto.gov/patents-gettin…ications/general-information-about-35-usc-161
These are my initial take-aways from reading the above and following works:
-
The pollen or seeds from a patented plant are not restricted by the patent, so a grower or other breeder can use them as they see fit, for example, to grow and breed as they see fit.
-
A plant patent only protects that specific plant (genotype), so if a different breeder created a variety with the same chemical makeup as the patented plant (or the same leaf color, for example), they aren’t infringing upon the plant patent holder. It’s only when it’s a utility patent that the copying breeder in this case would be infringing upon the patent. To infringe upon a plant patent the actual plant (genotype) is all that matters.
-
A plant variety protection certificate seems to provide more protection than a plant patent, as it also covers sexual reproduction. So a different breeder can’t use the protected plant to create new hybrids, except under the “research exception.” While plant patent is only about asexual reproduction. A big apparent difference here is the variety must be ‘true breeding,’ while a plant patent doesn’t make such a requirement.
-
A trademarked plant may be cloned and used as the grower or a different breeder sees fit, but the grower or breeder may not use the same name as the trademarked name.
-
In terms of Cannabis plants, I spoke with the “office of patent legal administration” at USPTO and I was told they will grant patents (plant and utility) for drug Cannabis plants.
Link broken
From http://www.uspto.gov/patents-gettin…eneral-information-about-35-usc-161#heading-5
- Grant of a patent for a plant precludes others from asexually reproducing or selling or using the patented plant. A plant patent is regarded as limited to one plant, or genome. A sport or mutant of a patented plant would not be considered to be of the same genotype, would not be covered by the plant patent to the parent plant, and would, itself, be separately patentable, subject to meeting the requirements of patentability. A plant patent expires 20 years from the filing date of the patent application. As with utility applications, when the plant patent expires, the subject matter of the patent becomes public domain.
Link broken
From https://www.princeton.edu/~ota/disk1/1989/8924/892407.PDF
- Plant patents, authorized by PPA, protect plant varieties that have been asexually reproduced, including cultivated sports*, mutants, hybrids, and newly found seedlings. They cannot be obtained for plants reproduced from seeds, tubers (e.g., Irish potatoes or Jerusalem artichokes), and wild varieties found in nature that are not asexually reproduced. Bulbs, corms, stolons, and rhizomes are not considered to be within the tuber exception. For a period of
- A sport is an individual exhibiting a sudden deviation from type beyond the normal limits of variation, usually as a result of a mutation.
Plant Variety Protection Certificates, authorized by PVPA, provide a form of protection for new, distinct, uniform, and stable varieties of sexually reproducing plants, except fungi, bacteria, tuberpropagated or uncultivated plants, and firstgeneration hybrids. PVPA is administered by the Plant Variety Protection Office (PVPO) within the U.S. Department of Agriculture (USDA). Under PVPA, the breeder can exclude others from selling, offering for sale, reproducing (sexually or asexually), producing a hybrid from the variety, and importing or exporting the protected variety. Two exemptions limit the certificate holder’s protection: farmers may save seed for crop production, and breeders may use the protected variety to produce new varieties-the so-called research exception. Furthermore, the Secretary of Agriculture can require the certificate owner to grant licenses to third parties if it is in the public interest. The period of exclusion is 18 years (7 U.S.C. 2483(b)).
Utility patents, issued under general patent law by the PTO, can be granted for plant inventions (35 U.S.C. 101) (8,16). Patents issued can claim plants, seeds, plant varieties, plant parts (e.g., fruit and flowers), processes of producing plants, plant genes, and hybrids. Utility patents for plants and varieties provide 17 years of protection for the owner. Chapter 3 discusses the requirements that inventions, including plants, must meet to be patentable.
Link broken
From http://extension.oregonstate.edu/gardening/what-does-it-mean-when-nursery-plants-are-patented-or-trademarked
A patent legally prevents others from reproducing the protected plant variety by cuttings, tissue culture or any other method of asexual propagation without the written authorization or licensing of the patent holder. Possession of improperly propagated plants of patented varieties constitutes infringement, even if an illegal propagation was inadvertent.
Though asexual reproduction may be prohibited on a patented cultivar, there is no regulation against using the plant in sexual reproduction. In other words, the seed or pollen from a patented variety may be used without permission of the patent holder. The offspring are free of patent regulations.
If a plant is patented, a license is required from the patent holder in order to make cuttings of that plant, even if it is planted in your own back yard. Unlike with a copyright, there is no concept of “fair use rights” for patents in the United States.
Trademarking is another way that the nursery industry gets recognition for its varieties, explained Altland. It’s faster, easier and cheaper than the patenting process for a nursery company and is renewable every 10 years. A trademark helps consumers associate certain varieties with a company name, much like “Big Mac” is associated with McDonald’s. Trademarking helps companies build customer loyalty.
[NOTE: It’s not possible to get US federal trademark protection of a Cannabis variety, cultivar, or other; but state trademark protection can be an opinion in some states.]A trademark on a plant protects only the plant’s name, not the plant cultivar itself, as with a patent. Another person could propagate a trademarked plant, but not call it the same variety name. Examples of trademarked varieties include the popular “Wave” series of petunias.
Unlike a patented plant, if you buy a trademarked plant, you can propagate it asexually by taking cuttings. You can even sell the propagated plants for profit, but you can’t call those plants by the trademarked name or acquire your own trademark for those same plants. You can, however, use the plant’s cultivar name if it has one (shown in single quotes) – assuming that it isn’t also patented.
From http://www.cof.orst.edu/cof/teach/a…tellectual property protection for plants.pdf
A plant patent, like a utility patent, has a term of 20 years from the filing date of the application. However, unlike a utility patent, there is only one claim to the plant variety itself, for example, “A Bermuda grass plant substantially as described and illustrated in the specification herein”10. The claim may also recite certain distinguishing characteristics.
Until recently (1999), a plant patent only prevented another from selling or using the whole plant. However, 35 USC §163 has been amended in the most recent Congress so that the grant includes “the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any parts thereof, into the United States”.
First, for asexually produced plants, a plant patent may be useful where it is difficult to meet the enablement requirement of a utility patent. Second, plant patents and PVP certificates only cover the plant variety and plants derived from the variety; a utility patent may cover similar plants, method of obtaining the plant, and method of use. Therefore, whenever possible, seek a utility patent.
The deposit of seeds to a recognized depository, such as the Agricultural Research Service Culture Collection, also known as NRRL, made in connection with a utility patent must be made publicly available after issuance of the patent; seeds deposited in connection with a PVPA are generally not publicly available. Publicly available seeds make the patent easier to infringe.
It is possible to obtain a plant patent but not a utility patent on an asexually reproduced plant that is discovered in a cultivated area. Therefore, if such a plant variety is actually isolated from a cultivated area, a plant patent would be the only protection available.
.
From http://www.cof.orst.edu/cof/teach/a…tellectual property protection for plants.pdf
