Wilhelm Elsner

Wilhelm Elsner

Re Wilhelm Elsner, 03-1569 (CAFC, August 16, 2004): The CAFC (Court of Appeals of the Federal Circuit) agreed with the Board of Patent Appeals and Interferences that the publication of Plant Breeder’s Rights applications coupled with foreign sales may constitute a §102(b) bar to patentability. This is usually not the case, however, this case deals with plant patents. Plant patents may be granted to “(w)hoever invents or discovers and asexually reproduces any distinct and new variety of plant ” (35 U.S.C.§161 (2000). A non-enabling publication and foreign sale can as a §102(b) bar, in fact, when a person skilled in the art is able to practice asexual reproduction of the plant in a manner consistent with the statute.