November 2005 Vol. 104 No. 2 THE REVIEW

Planting a Standard: Proposing a Broad Reading of In re Elsner

Alicia L. Frostick

In re Elsner grew out of the rejection of the plant patent applications of Mr. Elsner and Mr. Zary. Mr. Elsner is a plant breeder who resides in Germany and who maintains and “invents” new geraniums. In 1997 he filed an application for a Plant Breeder’s Rights (“PBR”) certificate at the European Community Plant Variety Office that was subsequently published. The application was for a new type of geranium that originated as a mutation of a parent geranium named Pendec. The published application disclosed the names and addresses of the plant breeder, a statement of botanical classification, and a provisional denomination for the plant. In 1998, Mr. Elsner sold the geranium in Germany. Meanwhile, Mr. Zary filed a PBR certificate in South Africa that claimed a new variety of rose plant called the JACopper. Information about the JACopper included a published certificate that specified how to contact the JACopper breeder and his South African agent. Mr. Zary sold the JACopper in South Africa and Zambia as early as 1996. Both Mr. Elsner and Mr. Zary tried to patent their plants in the United States under the Plant Patent Act 10 (“PPA”) but were rejected under 35 U.S.C. § 102(b), the on-sale bar. The patent office stated that the published PBR applications coupled with the overseas sale of the inventions sufficiently placed the public in possession of the invention to make it not novel and therefore unpatentable.

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