Are genetically modified plants patentable?

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.

Yes, genetically modified plants can be patentable subject matter. The MPEP cites the Supreme Court’s decision in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., which held that patentable subject matter under 35 U.S.C. 101 includes newly developed plant breeds.

The MPEP states: “With respect to plant subject matter, the Supreme Court held that patentable subject matter under 35 U.S.C. 101 includes newly developed plant breeds, even though plant protection is also available under the Plant Patent Act (35 U.S.C. 161 – 164) and the Plant Variety Protection Act (7 U.S.C. 2321 et. seq.).”

It’s important to note that the scope of coverage under 35 U.S.C. 101 is not limited by the Plant Patent Act or the Plant Variety Protection Act. Each statute can be regarded as effective because of its different requirements and protections.