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Ask Mr. Smarty Plants is a free service provided by the staff and volunteers at the Lady Bird Johnson Wildflower Center.

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Friday - September 20, 2013

From: Ashland, MO
Region: Midwest
Topic: Plant Laws, Plant Lists
Title: Are wildflowers in Missouri patented?
Answered by: Nan Hampton

QUESTION:

Are wildflowers in Missouri patented? If so where would I find a list of them?

ANSWER:

The short answer is "No.  Wildflowers found in an uncultivated state (i.e., in the "wild") cannot be patented."

There are plants that can be patented but these plants must have been created or propagated by the intervention of humans.   Examples would be new varieties of cultivated plants, hybrids and transgenic plants.

Now, for the longer explanation:

According to the United States Patent and Trademark Office (USPTO):

"...any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law. The word “process” is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term “machine” used in the statute needs no explanation. The term “manufacture” refers to articles that are made, and includes all manufactured articles. The term “composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything that is made by man and the processes for making the products."

Further, the USPTO says:

"A plant patent is granted by the Government to an inventor (or the inventor's heirs or assigns) who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state."

BiOS says:

"In the United States, any living organism that is the product of human intervention (such as by some breeding process or laboratory-based alteration) qualifies as a composition of matter, which is patentable (Diamond v Chakrabarty (1980) 447 US 303). As a result, plants are patentable subject matter (35 U.S.C. 101). Furthermore, the United States has extended patent protection to plants produced by either sexual or asexual reproduction and to plant parts including seeds and tissue cultures (Ex parte Hibberd (1985) 227 USPQ 433)."

This would mean that new varieties of plants, transgenic plants, plant culture cells, plant breeding methodologies and other plant features that are developed through human intervention could potentially be patented.  Wildflowers would be excluded from patenting since they are not the result of human intervention.  Flowers growing in the wild, i.e., wildflowers, are growing in an uncultivated state.

If you are looking for a list of wildflowers that grow in Missouri, I can help you find a list of a majority of the wildflowers occurring in Missouri.   Visit our Native Plant Database and do a COMBINATION SEARCH choosing "Missouri" from the Select State or Province slot and "Herb" from the Habit (general appearance)  option.  This will give you a list of more than 1,100 native herbaceous wildflowers found in Missouri.  Our database contains most of the native plants found in Missouri that are also on the USDA Plants Database.  The USDA Plants Database includes introduced species along with the North American native species.  You can also use the "Advanced Search" mode on the USDA Plants Database to find plants in Missouri; however, it is a bit more complicated using this "Advanced Search" method to search just for native herbaceous wildflowers.

 

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