Plant Material

Although plant material is included within the scope of the definition

of biological material for purposes of patents for plant inventions under

35 U.S.C.

101

, the rules on deposits are not applicable to applications

filed under the Plant Patent Act (

35 U.S.C. 161

-

164

). The Office

is of the view that a deposit is not required under the present provisions of

35 U.S.C.

162

. Thus, a deposit is not necessary for the grant of a plant

patent under the provisions of

35 U.S.C. 161

-

164

. See also

MPEP §

1605

. As with other biological material deposited for purposes

of patents for inventions under

35 U.S.C. 101

, the deposit of plant

material together with the written specification must enable those skilled in the art to

make and use the claimed invention, in accordance with the requirements of

35 U.S.C.

112

.

As with some types of reproducible biological material, seeds can be

reproduced only after a growing season which may be relatively long. Although the rules

do not specify a specific number of seeds to be deposited to meet the requirements of

these rules, so long as the number of seeds deposited complies with the requirements of

the Budapest Treaty International Depositary Authority (IDA) where the deposit is made,

the USPTO would consider such a compliant submission as satisfying the rules under

37 CFR

1.801

through

1.809

. Note that the American Type

Culture Collection (ATCC), a Budapest IDA, requires a minimum deposit of 625 seeds;

other IDAs may have different minimum requirements. Accordingly, any depositor should

confirm that the number submitted to a specific IDA complies with that IDA's

requirements for seed deposits.

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