How does claiming priority for a plant patent differ from utility patents?
Claiming priority for a plant patent is similar to claiming priority for a utility patent, but with some specific provisions tailored to plant-related inventions. The key difference lies in the type of foreign application that can serve as a basis for the priority claim.
For plant patents, MPEP 1613 states:
“Pursuant to 35 U.S.C. 119(f), an application for a plant patent may rely upon an application for plant breeder’s rights filed in a WTO member country (or in a foreign UPOV Contracting Party) for priority under 35 U.S.C. 119(a) through (c).”
This means that for plant patents:
- Priority can be based on a plant breeder’s rights application, not just a foreign patent application.
- The foreign application must be filed in a WTO member country or a UPOV Contracting Party.
- The priority period and other procedural aspects follow the same rules as utility patents under 35 U.S.C. 119(a) through (c).
In contrast, utility patent priority claims are typically based on foreign patent or utility model applications and are not limited to specific international organizations’ member countries.
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