United States patent law has provided patent protection for new varieties of asexually reproduced plants since the 1930s. Plants that were reproduced sexually--generally, by seed--as well as plants reproduced by tubers such as Irish potatoes and Jerusalem artichokes were explicitly excluded from patent eligibility. After unsuccessful attempts to add sexually produced plants to the scope of patent laws, Congress passed the Plant Variety Protection Act (PVPA) in 1970 to "encourage the development of novel varieties of sexually reproduced plants and to make them available to the public." The PVPA is administered by the Plant Variety Protection Office (PVPO), which is part of the United States Department of Agriculture, rather than the United States Patent and Trademark Office (USPTO). The PVPA does not issue patents but rather certificates of protection. Certificates of protection are also available for plants that are reproduced by tubers. The holder of a certificate of protection has the right to exclude others from selling or otherwise participating in the sale of the protected variety for a term of 20 years. However, gardeners and farmers are entitled to keep and use seed from protected plants that they have grown.

As with plant patents, the plant to be protected must have distinct characteristics that vary in a significant way from similar varieties of the same type of plant. The PVPA provides protection to those who develop desirable new plant characteristics in exchange for making those characteristics available to the public. In order to ensure that those characteristics will continue to be available, the person seeking protection must establish that the plant to be protected is uniform in the desirable characteristics within certain limits and that the desirable characteristics are genetically stable and will not be lost in successive generations of the plants. The certificate applicant must also supply the PVPO with a detailed breeding history of the plant. A sample must be submitted either of the seed or, in the case of a tuberous plant that is not reproduced by seed, of a cell culture. In addition to the standard application requirements, the PVPO requires that, for varieties of wheat, the application recite the milling and baking characteristics of the variety for which protection is sought.

As does the USPTO with patents, the PVPO maintains a database of plants that it searches to verify that a plant for which protection is sought is in fact distinguishable from existing varieties. If the plant to be protected is apparently indistinguishable from existing plants, the applicant will be required to submit more data based on supplemental greenhouse testing or DNA profiling. The PVPO does not have jurisdiction over infringement actions. Certificate holders having infringement claims are required to bring a civil action if they wish to enforce their rights under a certificate. If infringement is found, certificate holders may obtain an injunction to prevent continued infringement and may collect economic damages from infringers.

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