How do foreign sales affect prior art for plant patents?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Foreign sales can significantly impact what constitutes prior art for plant patents. According to MPEP 2121.03, the In re Elsner case established that foreign sales could potentially create a statutory bar. The MPEP notes:

“Although the court agreed with the Board that foreign sales may enable an otherwise non-enabling printed publication, the case was remanded for additional fact-finding in order to determine if the foreign sales of the plant were known to be accessible to the skilled artisan and if the skilled artisan could have reproduced the plant asexually after obtaining it without undue experimentation.”

This means that foreign sales of a plant, when combined with a publication identifying the plant, may constitute enabling prior art if the sales make the plant accessible to skilled artisans who can then reproduce it asexually without undue experimentation.