How does commercial availability affect plant patent prior art?
Commercial availability of plant materials can significantly impact what constitutes enabling prior art for plant patents. The MPEP 2121.03 provides an example in the case of Ex parte Thomson:
“Seeds were commercially available more than 1 year prior to applicant’s filing date. One of ordinary skill in the art could grow the claimed cotton cultivar from the commercially available seeds. Thus, the publications describing the cotton cultivar had ‘enabled disclosures.'”
This case illustrates that when plant materials (such as seeds) are commercially available and can be used to reproduce the claimed plant, publications describing the plant may be considered enabling prior art, even if they don’t provide detailed cultivation instructions.
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