Plant Patents — What is an Uncultivated State?


Recent Supreme Court cases such as Prometheus (Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. ___,132 S. Ct. 1289 (2012)) and Myriad (Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 566 U.S. ___,132 S. Ct. 1794 (2012)) have brought to the forefront interest in the legal definition of patentable subject matter (35 U.S.C. §101). These cases emphasize the common law prohibition on patenting laws of nature, products of nature and abstract ideas. Although this prohibition is not set out in the utility patent statute, a version of the prohibition does appear in 35 U.S.C. §161 which is the most recent amendment to the U.S. plant patent statute:

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.

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