The ownership of inventions that are conceived or first actually reduced to practice in performance of a U.S. Government-funded experimental, developmental or research project by a small business (e.g., a person or company) or a nonprofit organization (e.g., a university) is controlled by the Bayh-Dole Act.  With technology inventions (e.g., machines, articles of manufacture, compositions of matter and processes), it is clear when an invention becomes a “subject invention” and, thus, subject to the standard patent clauses of contract, grant or cooperative agreement.  When plant inventions become subject to these clauses is the subject of this article.

The regulations implementing the Bayh-Dole Act state that “the term invention means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code, or any novel variety of plant which is or may be protectable under the Plant Variety Protection Act (7 U.S.C. 2321 et seq.)” [37 CFR 401.2 (c)].  Thus, the following are deemed inventions under the Act:  (1) technologies that can be protected with a provisional or nonprovisional patent, (2) designs that can be protected with a design patent, (3) asexually-reproducible plants that can be protected with a plant patent and (4) plant varieties.

The regulations also state that “the term subject invention means any invention of a contractor conceived or first actually reduced to practice in the performance of work under a funding agreement; provided that in the case of a variety of plant, the date of determination (as defined in section 41(d) of the Plant Variety Protection Act [PVPA], 7 U.S.C. 2401(d)) must also occur during the period of contract performance.” [37 CFR 401.2 (d)].

A plant that is protectable under the PVPA (with a  certificatesof plant variety protection) or under the Plant Protection Act (with a plant patent) is called “a new variety.”  Unfortunately, the PVPA has been amended and no longer contains a section 41(d), but in the previous version of the PVPA, the “date of determination” meant the date when there has been at least tentative determination that the variety has been sexually reproduced with recognized characteristics whether or not the novelty of the characteristics has been determined.  Under Bayh-Dole rules, the term “contractor” includes subcontractors and consultants because patent rights flow down to all parties.

The U.S. Supreme Court has determined that all plants (and plant parts) that are useful, novel and nonobvious and can be adequately described (i.e., comply with the written description and enablement requirements of U.S. patent law) are protectable with a provisional or nonprovisional (utility) patents.  Thus, asexually-reproducible plants that can be adequately described are protectable with both a utility patent and a plant patent.
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The terms “conception” and actual “reduction to practice” have different meanings in utility patents and plant patents.  In utility patents, “conception” means the formation of a complete and operable invention in the mind of the inventor(s) and actual “reduction to practice” means the building of the invention (and testing it if testing is necessary to show that it has utility).  In plant patents, according to the U.S. Patent and Trademark Office (USPTO) “conception” requires more than that the inventor “[become] become aware of the existence” of the new variety;” “he must be certain that it is a new variety” [Dunn v. Ragin, 50 USPQ 472 (Pat. Off. Board Interf. Exam. 1941)].  Actual “reduction to practice” is said to occur “when the new variety is actually reproduced [asexually] and it is determined that the progeny in fact possesses the characteristic or characteristics which distinguish it as a new variety” [Dunn v. Ragin].  Thus, in the world of plant patents, “conception” and “reduction to practice” are, in effect, necessarily concurrent (occur at the same time).

So, a plant that is protectable with a plant patent (for whatever reason) becomes a “subject invention” if at least tentative determination that the variety has been reproduced with recognized characteristics is made during the period of performance of the award (whether or not the novelty of the characteristics has been determined) and the new variety is actually reproduced (asexually) and it is determined that the progeny in fact possess the characteristic or characteristics which distinguish it as a new variety in performance of the award.  A plant or plant part that is protectable with a utility patent (for whatever reason) becomes a “subject invention” if at least tentative determination that the variety has been reproduced with recognized characteristics is made during the period of performance of the award (whether or not the novelty of the characteristics has been determined) and the new variety is actually reproduced (asexually or sexually) and it is determined that the progeny in fact possesses the characteristic or characteristics which distinguish it as a new variety in performance of the award.  A plant that is protectable under the Plant Variety Protection Act (for whatever reason) becomes a “subject invention” if at least tentative determination that the variety has been reproduced with recognized characteristics is made during the period of performance of the award (whether or not the novelty of the characteristics has been determined) and the new variety is actually reproduced (sexually) and it is determined that the progeny in fact possesses the characteristic or characteristics which distinguish it as a new variety in performance of the award.

It is important to note that a variety of actions can cause a plant not to be protectable under the various statutes.  In general, the same rules apply to plant patents and utility patents (except that under plant patent rules the invention must be a distinct new variety and under utility patent rules the invention must be nonobvious).  Under both a plant patent and a utility patent, if a plant is “ready for patenting” (which, in the case of a plant patent, requires asexual reproduction of a plant variety to show that it is distinct), a public use or (even a secret) offer to sell of the plant in the U.S. more than one year before a U.S. patent application is filed on the plant can bar patentability, unless the sale or public use is part of a documented experiment.  Under the PPPA, different rules apply.

Hopefully, this article helps you understand when plant inventions become “subject inventions” that are subject to reporting, licensing and manufacturing rules under the patent clauses of Government funding agreements.