In re WILHELM ELSNER (Fed. Cir. 2004)
German plant breeder William Elsner filed for a plant patent on his new variety of geraniums. After receiving a 102(b) rejection from the Examiner that was affirmed by the BPAI, Elsner appealed to the Federal Circuit.
The Appellate Panel vacated and remanded.
We agree that the publication of the (international) applications coupled with foreign sales of the plants may constitute a §102(b) bar to patentability. However, because the record is silent on the extent to which the foreign sales were known to the public, and because the Board did not adequately address the degree to which availability of the plants through foreign sales enabled the preparation of the claimed plants, we vacate the Board’s decisions in both cases and remand for further proceedings.