MPEP § 1601 — MPEP § 1601
Current through: 2022-07-01

1601-Introduction: The Act, Scope, Type of Plants Covered 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Chapter 1600 

 Section 1601 
 

 
 
 
 
 
 1601 Introduction: The Act, Scope, Type of Plants Covered [R-01.2024]

 The right to a plant patent stems from:

 
 35 U.S.C. 161 
 Patents for plants. 

 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.
 

 The provisions of this title relating to patents for inventions shall
 apply to patents for plants, except as otherwise provided.
 

 

 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,
 inarching, apomictic seeds, bulbs, division, slips, rhizomes, runners, corms, tissue
 culture, nucellar embryos, etc. Plants capable of sexual reproduction are not excluded from
 consideration if they have also been asexually reproduced.
 

 With reference to tuber propagated plants, for which a plant patent cannot
 be obtained, the term “tuber” is used in its narrow horticultural sense as meaning a short,
 thickened portion of an underground branch. Such plants covered by the term “tuber
 propagated” include the Irish potato and the Jerusalem artichoke. This exception is made
 because this group alone, among asexually reproduced plants, is propagated by the same part
 of the plant that is sold as food. S. Rep. No. 71-315, at 5 (1930).
 

 The term “plant” has been interpreted to mean “plant” in the ordinary and
 accepted sense and not in the strict scientific sense and thus excludes bacteria. 
 In re Arzberger, 112 F. 2d 834, 46 USPQ 32 (CCPA 1940). The term “plant” thus
 does not include asexual propagating material, per se. Ex parte Hibberd, 227 USPQ 443, 447 (Bd. Pat. App. & Int. 1985). A
 “plant” in its ordinary meaning includes: a living plant organism which expresses a set of
 characteristics determined by its single, genetic makeup or genotype, which can be
 duplicated through asexual reproduction, but cannot otherwise be "made" or "manufactured."
 This ordinary meaning includes cultivated sports, mutants, hybrids, or transformed plants,
 where sports or mutants may be spontaneous or induced, and hybrids may be natural, from a
 planned breeding program, or somatic in source. While natural plant mutants might have
 naturally occurred, they must have been discovered in a cultivated area. Algae and
 macro-fungi are also regarded as plants.
 

 Invention for purposes of a plant patent is a two-step
 process:
 

 
 1) Discovery involves the identification of a novel
 plant in any cultivated area, involves the identification or recognition of an
 off­type plant in a monoculture of a known variety or the identification of a
 desirable mutant which was either spontaneous or induced, or results from the
 identification or recognition of an outstanding individual within the progeny of a
 cross made in a planned breeding program .
 

 2) Asexual reproduction, including observation of the
 resulting propagules or clones for a sufficient amount of time to have concluded that
 such specimens are identical to the parent plant in all characteristics, which tests
 the stability and uniformity of the claimed plant to assure that the plant's unique
 characteristics are not due to disease, infection, or exposure to agents which cause
 a change in the plant's appearance which is transitory and not due to a change in the
 genotype of the plant.
 

 
 Each of the above steps must be satisfied before filing a
 plant application. Filing of an application before the second step of invention has been
 completed will result in rejection of the claim as being premature and nonstatutory.
 

 35 U.S.C.
 161 originated as an amendment to the pre-existing patent statute
 with the Plant Patent Act of 1930. As enacted, the “invents or discovers” requirement
 limited patent protection to plants “that were created as a result of plant breeding or
 other agricultural and horticultural efforts and that were created by the inventor.”
 In re Beineke, 690 F.3d 1344, 1352, 103 USPQ2d 1872, 1877 (Fed. Cir.
 2012). The plant patent provisions were separated from the utility patent provisions in the
 Patent Act of 1952 to create 35 U.S.C. 161 . Id. 
 at 1348 n.2, 103 USPQ2d 1875 n.2. 35 U.S.C. 161 was amended in 1954 to
 extend protection to “newly found seedlings,” provided they were found in a cultivated
 state, but did not otherwise alter the scope of plant patent protection.
 Id. at 1352-53, 103 USPQ2d at 1878-79. 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 as required by the
 1930 Act, nor were they “newly found seedlings” under the 1954 amendment.
 Id. at 1348, 1352, 103 USPQ2d at 1875, 1879. 
 

 In reviewing the history of the Plant Patent Act, the
 Supreme Court explained: 
 

 
 Prior to 1930, two factors were thought to remove plants
 from patent protection. The first was the belief that plants, even those artificially
 bred, were products of nature for purposes of the patent law…. The second obstacle to
 patent protection for plants was the fact that plants were thought not amenable to the
 “written description” requirement of the patent law. See 35 U.S.C. § 112. … In enacting
 the Plant Patent Act, Congress addressed both of these concerns. It explained at length
 its belief that the work of the plant breeder “in aid of nature” was patentable
 invention. S. Rep. No. 315, 71st Cong., 2d Sess., 6-8 (1930); H.R. Rep. No. 1129, 71st
 Cong., 2d Sess., 7-9 (1930). And it relaxed the written description requirement in favor
 of “a description … as complete as is reasonably possible.” 35 U.S.C. § 162. 
 

 
 Diamond v. Chakrabarty, 447 U.S. 303, 311-312, 206 USPQ 193 (1980).
 

 An asexually reproduced plant may alternatively be protected under
 35 U.S.C.
 101 , provided the written description requirement can be satisfied.
 See 35 U.S.C.
 112 . In J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l,
 Inc., the Supreme Court held that patentable subject matter under
 35 U.S.C.
 101 includes newly developed plants, even though plant protection is
 also available under the Plant Patent Act ( 35 U.S.C. 161 - 164 ) and the Plant
 Variety Protection Act (7 U.S.C. 2321 et. seq.). J.E.M. Ag Supply, Inc. v. Pioneer
 Hi-Bred Int’l, Inc., 534 U.S. 124, 143-46, 122 S.Ct. 593, 605-06, 60 USPQ2d
 1865, 1874 (2001) (The scope of coverage of 35 U.S.C. 101 is not limited by the
 Plant Patent Act or the Plant Variety Protection Act; each statute has different
 requirements and protections). An application filed under 35 U.S.C. 101 may
 claim the same asexually reproduced plant that is claimed under 35 U.S.C. 161 , as
 well as plant materials and processes involving plant materials. See MPEP § 2105 .
 

 The filing of a terminal disclaimer may be used in
 appropriate situations to overcome an obviousness-type double patenting rejection based on
 claims to the asexually reproduced plant and/or fruit and propagating material thereof in
 an application under 35 U.S.C. 101 and the claim to the same asexually reproduced plant
 in an application under 35 U.S.C. 161. 

 
 35 U.S.C. 163 
 Grant. 

 In the case of a plant patent, the grant shall include the right to
 exclude others from asexually reproducing the plant, and from using, offering for sale,
 or selling the plant so reproduced, or any of its parts, throughout the United States,
 or from importing the plant so reproduced, or any parts thereof, into the United States.
 
 

 

 As provided in 35 U.S.C. 161 , the rights associated
 with a plant patent include the rights associated with a utility patent, and the “right to
 exclude” has additional terms provided in 35 U.S.C. 163 . 
 

 A plant patent is regarded as limited to one plant, or
 genome. A plant derived from a sport or a mutant is unlikely to have the same genome as the
 original plant, and thus would not be covered by the plant patent to the original plant.
 Such plant derived from a sport or a mutant may itself be protected under a separate plant
 patent, subject to meeting the requirements of patentability.
 

 A plant patent issuing from an application filed after June
 7, 1995 has a term which expires 20 years after the filing date of the application, or any
 earlier filing date claimed under 35 U.S.C. 120 , 121 or
 365(c) . See MPEP § 2701 . Plant patent applications are
 examined with respect to the same statutory provisions as other national applications (see
 MPEP §
 1608 ) and will be published pursuant to 35 U.S.C. 122(b) . See
 MPEP §
 324 (for applications filed before September 16, 2012),
 325 (for applications filed on or after September 16, 2012), or
 402 
 for information on legal representation in patent applications.
 

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 1601-Introduction: The Act, Scope, Type of Plants Covered 

 1602-Rules Applicable 

 1603-Elements of a Plant Application 

 1604-Applicant, Oath or Declaration 

 1605-Specification and Claim 

 1606-Drawings 

 1607-Specimens 

 1608-Examination 

 1609-Report of Agricultural Research Service 

 1610-The Action 

 1611-Issue 

 1612-UPOV Convention 

 1613-Right of Priority Based upon Application for Plant Breeder’s Rights 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:50:36