How does the availability of plant material affect enablement in prior art?
The availability of plant material is a critical factor in determining whether a prior art reference is enabling in plant genetics. According to MPEP 2121.03, “The mere reference to a plant with a particular name in a prior art publication does not by itself constitute the public availability of plant material.“
The MPEP further explains: “There must be sufficient disclosure in the prior art document to enable a person of ordinary skill in the art to obtain the plant material.” This means that for a prior art reference to be enabling, it must provide enough information for someone skilled in the field to actually acquire or reproduce the plant material.
Factors that may affect the availability of plant material include:
- Detailed descriptions of the plant’s characteristics
- Methods for obtaining or reproducing the plant
- Deposit of seeds or plant material in a publicly accessible depository
- Information on how to access the plant material from a source
If these factors are not adequately addressed in the prior art, the reference may not be considered enabling, even if it mentions the plant by name or describes some of its characteristics.
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