Why are tuber propagated plants excluded from plant patent protection?
Tuber propagated plants are specifically excluded from plant patent protection under 35 U.S.C. 161. The MPEP explains this exclusion:
“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’ are 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.”
Key points to understand:
- The exclusion applies specifically to plants propagated by tubers, not all plants with tubers.
- The term “tuber” is used in a narrow horticultural sense.
- The rationale for this exclusion is that these plants are propagated by the same part that is sold as food.
- This exclusion prevents patenting of common food crops like potatoes, which could potentially restrict food production and distribution.
This exception highlights the balance between protecting plant innovations and ensuring access to important food sources.
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