Editing MPEP 1600

{{MPEP Chapter|1500|1700}}

'''<big>Chapter 1600 Plant Patents</big>'''

<div class="noautonum">__TOC__</div>

==1601 Introduction: The Act, Scope, Type of Plants Covered==

The right to a plant patent stems from:

35 U.S.C. 161. Patents for plants.

Whoever invents or discovers and asexually reproduces any 
distinct and new variety of plant, including cultivated sports, 
mutants, hybrids, and newly found seedlings, other than a tuber 
propagated plant or a plant found in an uncultivated state, may 
obtain a patent therefor, subject to the conditions and requirements 
of this title.

The provisions of this title relating to patents for inventions 
shall apply to patents for plants, except as otherwise provided.

Asexually propagated plants are those that are 
reproduced by means other than from seeds, such as 
by the rooting of cuttings, by layering, budding, grafting, 
inarching, etc. Plants capable of sexual reproduction 
are not excluded from consideration if they have 
also been asexually reproduced.

With reference to tuber propagated plants, for 
which a plant patent cannot be obtained, the term 
“tuber” is used in its narrow horticultural sense as 
meaning a short, thickened portion of an underground 
branch. Such plants covered by the term “tuber propagated” 
are the Irish potato and the Jerusalem artichoke. 
This exception is made because this group 
alone, among asexually reproduced plants, is propagated 
by the same part of the plant that is sold as food.

The term “plant” has been interpreted to mean 
“plant” in the ordinary and accepted sense and not in 
the strict scientific sense and thus excludes bacteria. 
In re Arzberger, 112 
F. 2d 834, 46 USPQ 32 (CCPA 
1940). The term “plant” thus does not include asexual 
propagating material, per se. Ex parte Hibberd, 
227 
USPQ 443, 447 (Bd. Pat. App. & Int. 1985).

An asexually reproduced plant may alternatively be 
protected under 35 U.S.C. 101, as the Plant Patent Act 
(35 U.S.C. 161) is not an exclusive form of protection 
which conflicts with the granting of utility patents to 
plants. Ex parte Hibberd, 227 USPQ 443 (Bd. Pat. 
App. & Int. 1985). Inventions claimed under 
35 
U.S.C. 101 may include the same asexually reproduced 
plant which is claimed under 35 
U.S.C. 161, as 
well as plant materials and processes involving plant 
materials. The filing of a terminal disclaimer may be 
used in appropriate situations to overcome an obviousness-
type double patenting rejection based on 
claims to the asexually reproduced plant and/or fruit 
and propagating material thereof in an application 
under 35 
U.S.C. 101 and the claim to the same asexually 
reproduced plant in an application under 
35 
U.S.C. 161.

35 U.S.C. 163. Grant.

 In the case of a plant patent, the grant shall include the right to 
exclude others from asexually reproducing the plant, and from 
using, offering for sale, or selling the plant so reproduced, or any 
of its parts, throughout the United States, or from importing the 
plant so reproduced, or any parts thereof, into the United States.

As provided in 35 U.S.C. 161, the rights associated 
with a plant patent include the rights associated with a 
utility patent, and the “right to exclude” has additional 
terms provided in 35 U.S.C. 163. A plant patent issuing 
from an application filed after June 7, 1995 has a 
term which expires 20 years after the filing date of the 
application, or any earlier filing date claimed under 
35 
U.S.C. 120, 121 or 365(c). See MPEP § 2701. 
Plant patent applications will be published pursuant to 
35 U.S.C. 122(b). 

1602Rules Applicable

37 CFR 1.161. Rules applicable.

The rules relating to applications for patent for other inventions 
or discoveries are also applicable to applications for patents for 
plants except as otherwise provided.




 

1603Elements of a Plant Application

37 CFR 1.163. Specification and arrangement of 
application elements in a plant application.



(b)The elements of the plant application, if applicable, 
should appear in the following order:

(1)Plant application transmittal form.

(2)Fee transmittal form.

(3)Application data sheet (see § 1.76).

(4)Specification.

(5)Drawings (in duplicate).

(6)Executed oath or declaration (§ 1.162).



An application for a plant patent consists of the 
same parts as other applications. For information pertaining 
to the oath or declaration, specification and 
claim, or drawings, see MPEP § 1604, § 1605, or 
§
 
1606, respectively.

1604Applicant, Oath or Declaration

37 CFR 1.162. Applicant, oath or declaration.

The applicant for a plant patent must be the person who has 
invented or discovered and asexually reproduced the new and distinct 
variety of plant for which a patent is sought (or as provided 
in §§ 1.42, 1.43 and 1.47). The oath or declaration required of the 
applicant, in addition to the averments required by § 1.63, must 
state that he or she has asexually reproduced the plant. Where the 
plant is a newly found plant, the oath or declaration must also 
state that it was found in a cultivated area.

A Plant Patent Application (35 U.S.C. 161) Declaration, 
Form PTO/SB/03, may be used to submit a 
declaration. Form PTO/SB/81 may be used to appoint 
an attorney or agent. See MPEP § 402.

In an application for a plant patent, there can be 
joint inventors. See Ex parte Kluis, 70 USPQ 165 (Bd. 
App. 1945). 




 

Form PTO/SB/03. Plant Patent ApplicationForm PTO/SB/03. Plant Patent Application





 

Form PTO/SB/03. Plant Patent Application (page 2)





 

1605Specification and Claim

35 U.S.C. 162. Description, claim.

No plant patent shall be declared invalid for noncompliance 
with section 112 of this title if the description is as complete as is 
reasonably possible.

The claim in the specification shall be in formal terms to the 
plant shown and described.

37 CFR 1.163. Specification and arrangement of 
application elements in a plant application.

(a)The specification must contain as full and complete a 
disclosure as possible of the plant and the characteristics thereof 
that distinguish the same over related known varieties, and its 
antecedents, and must particularly point out where and in what 
manner the variety of plant has been asexually reproduced. For a 
newly found plant, the specification must particularly point out 
the location and character of the area where the plant was discovered.


(b)The elements of the plant application, if applicable, 
should appear in the following order:

(1)Plant application transmittal form.

(2)Fee transmittal form.

(3)Application data sheet (see § 1.76).

(4)Specification.

(5)Drawings (in duplicate).

(6)Executed oath or declaration (§ 1.162).

(c)The specification should include the following sections 
in order:

(1)Title of the invention, which may include an introductory 
portion stating the name, citizenship, and residence of the 
applicant.

(2)Cross-reference to related applications (unless 
included in the application data sheet).

(3)Statement regarding federally sponsored research or 
development.

(4)Latin name of the genus and species of the plant 
claimed.

(5)Variety denomination.

(6)Background of the invention.

(7)Brief summary of the invention.

(8)Brief description of the drawing.

(9)Detailed botanical description.

(10) A single claim.

(11) Abstract of the disclosure.

(d)The text of the specification or sections defined in paragraph 
(c) of this section, if applicable, should be preceded by a 
section heading in upper case, without underlining or bold type.

37 CFR 1.164. Claim.

The claim shall be in formal terms to the new and distinct variety 
of the specified plant as described and illustrated, and may 
also recite the principal distinguishing characteristics. More than 
one claim is not permitted.

The specification should include a complete 
detailed description of the plant and the characteristics 
thereof that distinguish the same over related known 
varieties, and its antecedents, expressed in botanical 
terms in the general form followed in standard botanical 
textbooks or publications dealing with the varieties 
of the kind of plant involved (evergreen tree, 
dahlia plant, rose plant, apple tree, etc.), rather than a 
mere broad nonbotanical characterization such as 
commonly found in nursery or seed catalogs. The 
specification should also include the origin or parentage 
and the genus and species designation of the plant 
variety sought to be patented. The Latin name of the 
genus and species of the plant claimed should be 
stated and preceded by the heading set forth in 
37 
CFR 1.163(c)(4). The specification must particularly 
point out where, e.g., location or place of business, 
and in what manner the variety of plant has been 
asexually reproduced. 

Form Paragraphs 16.01, 16.09, and 16.10 may be 
used to object to the disclosure under 37 CFR 
1.163(a).

¶ 16.01 Specification, Manner of Asexually Reproducing

The application is objected to under 37 CFR 1.163(a) because 
the specification does not “particularly point out where and in 
what manner the variety of plant has been asexually reproduced”. 
Correction is required.

¶ 16.09 Specification, Less Than Complete Description

The disclosure is objected to under 37 CFR 1.163(a) because 
the specification presents less than a full and complete botanical 
description and the characteristics which distinguish over related 
known varieties. More specifically: [1].

¶ 16.10 Specification, Location of Plant Not Disclosed

The disclosure is objected to under 37 CFR 1.163(a) because 
the specification does not particularly point out the location and 
character of the area where the plant was discovered.

Where color is a distinctive feature of the plant, the 
color should be positively identified in the specification 
by reference to a designated color as given by a 
recognized color dictionary or color chart. 




 

Form Paragraphs 16.02 and 16.03 may be used to 
object to the disclosure or reject the claim, respectively, 
because of a lack of a clear and complete disclosure 
with regard to colors.

¶ 16.02 Colors Specified Do Not Correspond With Those 
Shown

The disclosure is objected to under 35 U.S.C. 112, first paragraph, 
because the [1] colors specified fail to correspond with 
those shown.

¶ 16.03 Rejection, 35 U.S.C. 112, 1st Paragraph, Non-
Support for Colors

The claim is rejected under 35 U.S.C. 112, first paragraph, as 
being unsupported by a clear and complete disclosure with regard 
to [1] colors, for the following reasons: [2].

If the written description of a plant is deficient in 
certain respects (see, e.g., In re Greer, 484 F.2d 488, 
179 USPQ 301 (CCPA 1973)), a clarification or additional 
description of the plant, or even a wholesale 
substitution of the original description so long as not 
totally inconsistent and unrelated to the original 
description and photograph of the plant may be submitted 
in reply to an Office action. Such submission 
will not constitute new matter under 35 
U.S.C. 132. 
Jessel v. Newland, 195 USPQ 678, 684 (Dep. 
Comm’r Pat. 1977).

The rules on Deposit of Biological Materials, 
37 
CFR 1.801-1.809, do not apply to plant patent 
applications in view of the reduced disclosure requirements 
of 35 U.S.C. 162, even where a deposit of a 
plant has been made in conjunction with a utility 
application (35 U.S.C. 101).

A plant patent is granted only on the entire plant. It, 
therefore, follows that only one claim is necessary and 
only one is permitted. A method claim in a plant 
patent application is improper. An example of a 
proper claim would be “A new and distinct variety of 
hybrid tea rose plant, substantially as illustrated and 
described herein.”

1606Drawings 

37 CFR 1.165. Plant drawings.

(a)Plant patent drawings should be artistically and competently 
executed and must comply with the requirements of 
§
 
1.84. View numbers and reference characters need not be 
employed unless required by the examiner. The drawing must disclose 
all the distinctive characteristics of the plant capable of 
visual representation.

(b)The drawings may be in color. The drawing must be in 
color if color is a distinguishing characteristic of the new variety. 
Two copies of color drawings or photographs and a black and 
white photocopy that accurately depicts, to the extent possible, the 
subject matter shown in the color drawing or photograph must be 
submitted.

 If the drawings or photographs are in color, two 
color copies of each drawing or photograph are 
required. If the required copies of the drawings are not 
included, the application will be accorded a filing 
date, but correction will be required before the application 
is forwarded for examination. The requirement 
under 37 CFR 1.165(b) for a black and white photocopy 
of any color drawing or photograph has been 
waived. See 1246 O.G. 106 (May 22, 2001).

37 CFR 1.84. Standards for drawings.



(c)Identification of drawings. Identifying indicia, if provided, 
should include the title of the invention, inventor’s name, 
and application number, or docket number (if any) if an application 
number has not been assigned to the application. If this information 
is provided, it must be placed on the front of each sheet 
and centered within the top margin.



(e)Type of paper. Drawings submitted to the Office must be 
made on paper which is flexible, strong, white, smooth, non-shiny, 
and durable. All sheets must be reasonably free from cracks, 
creases, and folds. Only one side of the sheet may be used for the 
drawing. Each sheet must be reasonably free from erasures and 
must be free from alterations, overwritings, and interlineations. 
Photographs must be developed on paper meeting the sheet-size 
requirements of paragraph (f) of this section and the margin 
requirements of paragraph (g) of this section. See paragraph (b) of 
this section for other requirements for photographs.

(f)Size of paper. All drawing sheets in an application must 
be the same size. One of the shorter sides of the sheet is regarded 
as its top. The size of the sheets on which drawings are made must 
be:

(1)21.0 cm. by 29.7 cm. (DIN size A4), or

(2)21.6 cm. by 27.9 cm. (8 1/2 by 11 inches).

(g)Margins. The sheets must not contain frames around the 
sight (i.e., the usable surface), but should have scan target points 
(i.e., cross-hairs) printed on two cater-corner margin corners. Each 
sheet must include a top margin of at least 2.5 
cm. (1 
inch), a left 
side margin of at 
least 2.5 
cm. (1 
inch), a right side margin of at 
least 1.5 
cm. (5/8 
inch), and a bottom margin of at least 1.0 
cm. 
(3/8 
inch), thereby leaving a sight no greater than 17.0 
cm. by 
26.2 
cm. on 21.0 
cm. by 29.7 
cm. (DIN size A4) drawing sheets, 
and a sight no greater than 17.6 
cm. by 24.4 
cm. (6 15/16 by 9 5/
8 
inches) on 21.6 
cm. by 27.9 
cm. (8 1/2 by 11 
inch) drawing 
sheets.






 

(i)Arrangement of views. One view must not be placed 
upon another or within the outline of another. All views on the 
same sheet should stand in the same direction and, if possible, 
stand so that they can be read with the sheet held in an upright 
position. If views wider than the width of the sheet are necessary 
for the clearest illustration of the invention, the sheet may be 
turned on its side so that the top of the sheet, with the appropriate 
top margin to be used as the heading space, is on the right-hand 
side. Words must appear in a horizontal, left-to-right fashion when 
the page is either upright or turned so that the top becomes the 
right side, except for graphs utilizing standard scientific convention 
to denote the axis of abscissas (of X) and the axis of ordinates 
(of Y).



(t)Numbering of sheets of drawings. The sheets of drawings 
should be numbered in consecutive Arabic numerals, starting with 
1, within the sight as defined in paragraph (g) of this section. 
These numbers, if present, must be placed in the middle of the top 
of the sheet, but not in the margin. The numbers can be placed on 
the right-hand side if the drawing extends too close to the middle 
of the top edge of the usable surface. The drawing sheet numbering 
must be clear and larger than the numbers used as reference 
characters to avoid confusion. The number of each sheet should 
be shown by two Arabic numerals placed on either side of an 
oblique line, with the first being the sheet number and the second 
being the total number of sheets of drawings, with no other marking.


(u)Numbering of views.

(1)The different views must be numbered in consecutive 
Arabic numerals, starting with 1, independent of the numbering of 
the sheets and, if possible, in the order in which they appear on the 
drawing sheet(s). Partial views intended to form one complete 
view, on one or several sheets, must be identified by the same 
number followed by a capital letter. View numbers must be preceded 
by the abbreviation “FIG.” Where only a single view is used 
in an application to illustrate the claimed invention, it must not be 
numbered and the abbreviation “FIG.” must not appear.

(2)Numbers and letters identifying the views must be 
simple and clear and must not be used in association with brackets, 
circles, or inverted commas. The view numbers must be larger 
than the numbers used for reference characters.



(x)Holes. No holes should be made by applicant in the 
drawing sheets.

Form Paragraphs 16.06, 16.06.01, 16.07, and 16.11 
may be used to object to the drawing disclosure.

¶ 16.06 Drawings Must Be in Duplicate

The disclosure is objected to under 37 CFR 1.165(b) because 
applicant has not provided copies of the drawing in duplicate. 
Correction is required.

¶ 16.07 Drawing Figures Not Competently Executed

The disclosure is objected to under 37 CFR 1.165(a) because 
Fig. [1] not artistically and/or competently executed.

¶ 16.11 Drawings in Improper Scale

The disclosure is objected to under 37 CFR 1.165(a) because 
the drawings are of an inadequate scale to show the distinguishing 
features of the plant.

1607Specimens

37 CFR 1.166. Specimens.

The applicant may be required to furnish specimens of the 
plant, or its flower or fruit, in a quantity and at a time in its stage 
of growth as may be designated, for study and inspection. Such 
specimens, properly packed, must be forwarded in conformity 
with instructions furnished to the applicant. When it is not possible 
to forward such specimens, plants must be made available for 
official inspection where grown.

Specimens of the plant variety, its flower or fruit, 
should not be submitted unless specifically called for 
by the examiner.

Form Paragraph 16.13 may be used to require specimens.


¶ 16.13 Specimens Are Required

Applicant [1] required to submit [2] in accordance with 37 
CFR 1.166.

1608Examination 

37 CFR 1.167. Examination.

Applications may be submitted by the Patent and Trademark 
Office to the Department of Agriculture for study and report.

The authority for submitting plant applications to 
the Department of Agriculture for report is given in:

Executive Order No. 5464, October 17, 1930. Facilitating 
the consideration of applications for plant patents.

 

I, Herbert Hoover, President of the United States of 
America, under the authority conferred upon me by act of 
May 23, 1930 (Public No. 245) [now 35 U.S.C. 164], 
entitled “An act to provide for plant patents,” and by virtue 
of all other powers vested in me relating thereto, do 
hereby direct the Secretary of Agriculture: (1) to furnish 
the Commissioner of Patents such available information 
of the Department of Agriculture, or (2) to conduct 
through the appropriate bureau or division of the department 
such research upon special problems, or (3) to detail 
to the Commissioner of Patents such officers and employees 
of the department, as the Commissioner may request 
for the purpose of carrying said act into effect.




 

35 U.S.C. 164. Assistance of Department of Agriculture.

The President may by Executive order direct the Secretary of 
Agriculture, in accordance with the requests of the Director, for 
the purpose of carrying into effect the provisions of this title with 
respect to plants (1) to furnish available information of the 
Department of Agriculture, (2) to conduct through the appropriate 
bureau or division of the Department research upon special problems, 
or (3) to detail to the Director officers and employees of the 
Department.

Plant applications are subject to the same examination 
process as any other national application. As 
such, the statutory provisions with regard to patentable 
subject matter, utility, novelty, obviousness, disclosure, 
and claim specificity requirements apply 
(35 
 
U.S.C. 101, 102, 103, and 112). The sole exception 
in terms of applicability of these statutory provisions 
is set forth in 35 U.S.C. 162.

The prior art considered by the examiner is developed 
by a search of appropriate subclasses of the 
United States patent classification system as well as 
patent and nonpatent literature data bases. Where 
appropriate, a report may be obtained from the Agricultural 
Research Service, Horticultural Research 
Branch, Department of Agriculture.

1609Report of Agricultural
Research Service 

Where the examiner considers it necessary to the 
examination of the plant patent application, a copy of 
the file and drawing of the application are forwarded 
to the National Program Leader for Horticultural 
Crops, Agricultural Research Service (ARS), U.S. 
Department of Agriculture, along with a request for a 
report as to whether the plant variety disclosed is new 
and distinct over known plant varieties. As the report 
is merely advisory to the Office, it is placed in the file 
but is not given a paper number. The copy of the 
report is customarily utilized by the examiner in the 
preparation of his or her action on the application.

The report may embody criticisms and objections 
to the disclosure, may offer suggestions for correction 
of such, or the report may merely state that:

“Examination of the specification submitted indicates 
that the variety described is not identical with others with 
which our specialists are familiar.” 

1610The Action

The action on the application by the examiner will 
include all matters as provided for in other types of 
patent applications. See 37 CFR 1.161.

With reference to the examination of the claim, the 
language must be such that it is directed to the “new 
and distinct variety of plant.” This is important as 
under no circumstance should the claim be directed to 
a new variety of flower or fruit in contradistinction to 
the plant bearing the flower or the tree bearing the 
fruit. This is in spite of the fact that it is accepted and 
general botanical parlance to say “A variety of apple 
or a variety of blackberry” to mean a variety of apple 
tree or a variety of blackberry plant.

Where the application is otherwise allowable, a 
claim which recites, for example “A new variety of 
apple characterized by,” may be amended by the 
insertion of __ tree __ after “apple” by an examiner’s 
amendment.

By the same token, the title of the invention must 
relate to the entire plant and not to its flower or fruit, 
thus: Apple Tree, Rose Plant.

Care should also be exercised that the specification 
does not contain unwarranted advertising, for example, 
“the disclosed plant being grown in the XYZ 
Nurseries of Topeka, Kansas.” It follows, also, that in 
the drawings any showing in the background of a 
plant, as a sign carrying the name of an individual, 
nursery, etc., is objectionable and deletion thereof is 
required. Nor should the specification include laudatory 
expressions, such as, “The rose is prettier than 
any other rose.” Such expressions are wholly irrelevant. 
Where the fruit is described, statements in the 
specification as to the character and quality of products 
made from the fruit are not necessary and should 
be deleted.

The Office action may include so much of any 
report of the ARS as the examiner deems necessary, 
or may embody no part of it. In the event of an interview, 
the examiner, in his or her discretion, may show 
the entire report to the inventor or attorney.




 

Form Paragraph 16.12 may be used to reference 
portions of the ARS report.

¶ 16.12 Report From U.S. Dept. of Agriculture

This application has been submitted to the U.S. Department of 
Agriculture for a report. Pertinent portions follow: [1]

The report of the ARS is not in the nature of a publication 
and matters raised therein within the personal 
knowledge of the specialists of the ARS are not sufficient 
basis for a rejection unless it is first ascertained 
by the examiner that the same can be supported by 
affidavits by said specialists (37 CFR 1.104(d)(2)). 
See Ex parte Rosenberg, 46 
USPQ 393 (Bd. App. 
1939).

Form Paragraphs 16.04 and 16.08, as appropriate, 
may be used to reject the claim. 

¶ 16.04 Rejection, 35 U.S.C. 102

The claim is rejected under 35 U.S.C. 102 as failing to patentably 
distinguish over [1].

¶ 16.08 Rejection, 35 U.S.C. 112

The claim is rejected under 35 U.S.C. 112 [1] because [2].

1611Issue 

The preparation of a plant patent application for 
issue involves the same procedure as for other applications 
(37 
CFR 1.161), with the exception that where 
there are color drawings, the better one of the two 
judged, for example, by its sharpness or cleanliness is 
selected to be printed in the patent.

The International Patent Classification symbols, 
most recent edition, should be placed in the issuing 
classification boxes on the file wrapper or on the Issue 
Classification slip of all plant patent applications 
being sent to issue.

All plant patent applications should contain an 
abstract when forwarded to the Office of Patent Publication.


1612UPOV Convention 

On November 8, 1981, the 1978 text of the “International 
Convention for the Protection of New Varieties 
of Plants” (generally known by its French 
acronym as the UPOV Convention) took effect in the 
United States and two other states that had not been 
party to the 1961 text, Ireland and New Zealand. As 
of September 24, 2000, 46 states were party to the 
UPOV Convention: Argentina, Australia, Austria, 
Belgium, Bolivia, Brazil, Bulgaria, Canada, Chile, 
China, Colombia, Czech Republic, Denmark, Ecuador, 
Estonia, Finland, France, Germany, Hungary, Ireland, 
Israel, Italy, Japan, Kenya, Kyrgyzstan, Mexico, 
Netherlands, New Zealand, Norway, Panama, Paraguay, 
Poland, Portugal, Republic of Moldova, Russian 
Federation, Slovakia, Slovenia, South Africa, Spain, 
Sweden, Switzerland, Trinidad and Tobago, Ukraine, 
United Kingdom, United States of America, and Uruguay. 
Most states adhere to the 1978 text. The United 
States adheres to the 1991 text, and has a reservation 
under Article 35(2) of the text (which allows plant 
patents rather than breeder’s rights certificates to be 
granted).

 The 1961, 1978, and 1991 texts guarantee to plant 
breeders in each member state both national treatment 
and the right of priority in all other member states. In 
many states, new plant varieties are protected by 
breeders’ rights laws rather than patent laws. Accordingly, 
the Paris (Industrial Property) Convention cannot 
always be relied on to provide these and other 
rights.

Insofar as the patenting of asexually reproduced 
plants in the United States is concerned, both national 
treatment and the right of priority have been accorded 
to foreign plant breeders since enactment of the plant 
patent law in 1930 (now 35 U.S.C. 161-164). See 
MPEP § 1613 for the right of priority based upon an 
application for plant breeder’s rights.

Application of the UPOV Convention in the United 
States does not affect the examination of plant patent 
applications, except in one instance. It is now necessary 
as a condition for receiving a plant patent to register 
a variety denomination for that plant. Inclusion 
of the variety denomination in the patent comprises its 
registration.

The registration process in general terms consists of 
inclusion of a proposed variety denomination in the 
plant patent application. The examiner must evaluate 
the proposed denomination in light of UPOV Convention, 
Article 13. Basically, this Article requires that 
the proposed variety denomination not be identical 
with or confusingly similar to other names utilized in 
the United States or other UPOV member countries 
for the same or a closely related species. In addition, 
the proposed denomination must not mislead the average 
consumer as to the characteristics, value, or 
identity of the patented plant. Ordinarily, the denomination 
proposed for registration in the United States 




 

must be the same as the denomination registered in 
another member state of UPOV. 

Form Paragraph 16.05 may be used to object to the 
disclosure as lacking a common or market name or 
“denomination” of the plant.

¶ 16.05 Name or Denomination for Plant Missing

 The disclosure is objected to under 37 CFR 1.121(e) because 
no “variety denomination” of the instant plant has been set forth in 
the disclosure. 37 CFR 1.163(c)(4). Correction by adding such a 
name is required.

¶ 16.05.01 Latin Name of Genus and Species of the Plant 
Claimed Missing

 The disclosure is objected to under 37 CFR 1.121(e) because 
the Latin name of the genus and species of the instant plant has 
not been set forth in the disclosure. 37 CFR 1.163(c)(4). Correction 
by adding such a name is required.

1613Right of Priority Based upon
Application for Plant Breeder’s
Rights 

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).