What is the significance of the In re Elsner case for plant patents?
The In re Elsner case, as discussed in MPEP 2121.03, is significant for plant patents as it establishes criteria for when a combination of facts and events can constitute a statutory bar under pre-AIA 35 U.S.C. 102(b). The MPEP states:
“The court held that when (i) a publication identifies claimed the plant, (ii) a foreign sale occurs that puts one of ordinary skill in the art in possession of the plant itself, and (iii) such possession permits asexual reproduction of the plant without undue experimentation to one of ordinary skill in the art, then that combination of facts and events directly conveys the essential knowledge of the invention and constitutes a pre-AIA 35 U.S.C. 102(b) statutory bar.”
This case highlights the importance of considering foreign sales and publications in determining prior art for plant patents, especially when they enable asexual reproduction of the plant.
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