What should the claim language focus on in a plant patent application?

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.

In a plant patent application, the claim language must be directed to the “new and distinct variety of plant.” The MPEP 1610 states:

“This is important as under no circumstance should the claim be directed to a new variety of flower or fruit in contradistinction to the plant bearing the flower or the tree bearing the fruit.”

For example, if the application is for a new apple tree variety, the claim should refer to the tree itself, not just the apple fruit. An examiner may amend a claim from “A new variety of apple” to “A new variety of apple tree” to ensure proper focus on the entire plant.