Page 8 - Grapevine July-August 2019

In The Winery

excellent suitability as a red wine grape. Asexual As part of the application, photographs or detailed
propagation by hardwood cutting was first carried drawings that are artistically and competently
out in 2002 at Hugo, Minn.; subsequent asexual executed must be included of the plant. If color is
propagations have shown the variety to be stable a distinguishing characteristic of the new variety,
and to reproduce true to type through successive the photographs or drawings must be submitted
generations.” in color. In some cases, the examiner may also
require that the applicant submit specimens of the
Notice that the plant was first created in 1996 plant, or its flower or fruit, at a time in its stage of
and the first asexual reproduction was carried out growth that the examiner designates, for study and
in 2002, yet the application for this patent was inspection (though if the examiner requests a spec-
not filed until 2016 and issued in 2019. This is an imen in the form of a bottle of finished wine, the
important point, because plant patents are subject request should be viewed with a bit of skepticism).
to the requirements of 35 U.S.C. §102(a)(1), which
provides that the applicant will not be entitled to a As with utility patents, examination of the appli-
patent if the claimed invention was “described in a cation involves a comparison of the claimed inven-
printed publication, or in public use, on sale, or oth- tion to the “prior art” (i.e., the plants known to
erwise available to the public before the effective have existed before the application). Generally,
filing date of the claimed invention.” In this case, this comparison involves a search of appropriate
twenty years elapsed between the first creation of subclasses of the US patent classification system as
the variety and the filing date. In order to satisfy well as patent and non-patent literature databases.
section 102, therefore, the inventor must not have In some cases, however, an examiner will request
described the new variety in any printed publica- an analysis from the Agricultural Research Service,
tion or sold the vine or made it publicly available Horticultural Research Branch of the Department of
during that twenty year period. Agriculture. The authority for this type of request

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