MPEP § 1604 — MPEP § 1604
Current through: 2022-07-01

1604-Applicant, Oath or Declaration 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Chapter 1600 

 Section 1604 
 

 
 
 
 
 
 1604 Applicant, Oath or Declaration [R-01.2024]

 
 37 CFR 1.162 Applicant, oath or declaration. 

 [Editor Note: Applicable only to patent applications filed under 35 U.S.C.
 111(a) or 363 on or after September 16, 2012.] 

 The inventor named for a plant patent application must be
 the person who has invented or discovered and asexually reproduced the new and distinct
 variety of plant for which a patent is sought. The inventor's oath or declaration, in
 addition to the averments required by § 1.63 or § 1.64 , must
 state that the inventor has asexually reproduced the plant. Where the plant is a newly
 found plant, the inventor's oath or declaration must also state that it was found in a
 cultivated area.
 

 

 
 37 CFR 1.162 (pre-AIA). Applicant, oath or declaration. 

 [Editor Note: Not applicable to patent applications filed under 35
 U.S.C. 111(a) or 363 on or after September 16, 2012.] 

 The applicant for a plant patent must be the person who has invented or
 discovered and asexually reproduced the new and distinct variety of plant for which a
 patent is sought (or as provided in §§ 1.42, 1.43 and 1.47). The oath or declaration
 required of the applicant, in addition to the averments required by § 1.63, must state
 that he or she has asexually reproduced the plant. Where the plant is a newly found
 plant, the oath or declaration must also state that it was found in a cultivated
 area.
 

 

 The inventor's oath or declaration, in addition to the
 averments required by 37 CFR 1.63 or 37 CFR 1.64 , (or, for applications
 filed before September 16, 2012, pre-AIA 37 CFR 1.63 ) must state that
 the inventor has asexually reproduced the plant. Where the plant is a newly found plant,
 the inventor's oath or declaration must also state that it was found in a cultivated
 area.
 

 A Plant Patent Application ( 35 U.S.C. 161 ) Declaration, Form
 PTO/AIA/09, may be used to submit a declaration in a plant application filed on or after
 September 16, 2012. See MPEP § 602.01(a) .
 

 35
 U.S.C. 100(f) defines the term "inventor" as the individual or, if a
 joint invention, the individuals collectively who invented or discovered the subject matter
 of the invention. In an application for a plant patent, there can be joint inventors, as
 there may be multiple steps in developing a plant invention. For example, if one person
 discovered a new and distinct plant and asexually reproduced the plant, such person would
 be a sole inventor. If one person discovered or selected a new and distinct plant, and a
 second person asexually reproduced the plant and ascertained that the clone(s) of the plant
 were identical to the original plant in every distinguishing characteristic, the second
 person would properly be considered a joint inventor. See Ex parte
 Kluis, 70 USPQ 165 (Bd. App. 1945). If a group of staff or collaborators
 contributed to the final plant invention, everyone would be considered joint inventors.
 However, an inventor may direct that the step of asexual reproduction be performed by a
 custom propagation service or tissue culture enterprise. Those performing the service would
 not be considered joint inventors.
 

 

 

 

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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