1601 Introduction: The Act, Scope, Type of Plants Covered
|
Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title.
Plants capable of sexual reproduction are not excluded from consideration if they have been asexually reproduced in the past:
- a plant reproduced by seeds cannot be patented, unless it was initially asexually reproduced
Asexually propagated plants are those that are reproduced by means other than from seeds, such as by the rooting of cuttings, by layering, budding, grafting or inarching
The definition of a tuber:
- the short, thickened portion of an underground branch
- examples of plants that fall into the tuber propagated category:
- Irish potato and Jerusalem artichoke
Tuber propagated plants are not patentable even though they reproduce asexually
- this is because they are propagated by the same part of the plant that is sold as food
All plants are patentable except:
- bacteria
- those that are tuber propagated
- plants that are not invented or discovered in a cultivated state and asexually reproduced
- plants that are not obvious
In Beineke, the Federal Circuit held that two century-old oak trees found on the lawn of a home were ineligible for patent protection under 35 U.S.C. 161 because they were not created from inception by human activity and created by the inventor (i.e., the patent applicant) as required by the 1930 Act, nor were they “newly found seedlings” under the 1954 amendment.
An asexually reproduced plant may alternatively be protected under 35 U.S.C. 101, provided the written description requirement can be satisfied.
