Changes to US Patent laws

There are changes currently in progress at the US Patent and Trademark Office (USPTO), the result of the new America Invents Act (AIA) which is introducing some of the biggest changes in patent law seen in the US for many years.

In the US, new plant varieties that are propagated asexually are generally protected by Plant Patent as the US does not have a sui generis system of Plant Variety Rights that covers asexually reproduced plant varieties. Consequently, changes to patent law have implications for breeders of new plant varieties. PFE is currently studying these changes and will post more on them here in the coming days and weeks. Of course, please remember that PFE is a breeder agency, not a law firm, so please consider these posts as only our interpretation of the law and not to be considered as legal advice.

One of the interesting changes is the adoption of a new discounted fee structure for "micro-entities". For some time, there has been a 50% fee discount for "small entities" – individuals, businesses with less than 500 employees and not-for-profit organisations. The new fee structure (which, incidentally, sees an increase in fees payable to the USPTO in the order of 15%) now allows a 75% reduction in fees for micro-entities. There are detailed requirements that need to be satisfied in order to qualify for this and you should ask us for more details or seek independent advice. However, the essence of this is that individuals with no more than four previous applications for patent at the USPTO and with gross annual income of less than three times the US median household income (as published by the US Census Bureau; 2010 figure: USD49,445) would qualify as micro-entities. Educational establishments would also qualify.

All that said, although the new micro-entity discount was supposed to come into effect last month, the USPTO has not yet said when it will actually make the new discount available to applicants. We must hope that it is soon.

This will certainly be of benefit to the small, independent, backyard breeder. It may also be beneficial for anyone starting out in breeding. If PFE is able to obtain the discount when making US Plant Patent applications on your behalf, please be assured that we will pass the discount to you.