Introduction

Patent law jurisprudence develops in loosely definable stages within technology areas. In plant sciences, US patent law jurisprudence has now progressed through its first stage. The Supreme Court's landmark decision in J.E.M. Ag Supply y Pioneer Hi-Bred has confirmed that plants are eligible for protection under the US utility patent scheme, bringing closure to an initial round of debate over the eligibility provision of the utility patent statute and its relationship with the Plant Variety Protection Act (PVPA) and the Plant Patent Act (PPA).

* A slightly different version of this chapter appears in the Australian publication Law in Context

(forthcoming 2007).

This chapter aims to comment briefly on the emerging, second stage of utility patent jurisprudence in plant sciences. Although the first stage dealt with threshold statutory interpretation questions, the second stage will be very different. It will be a calibration stage. It will be likely to feature the incremental refinement of the key patent doctrines that determine whether the patent system will foster or thwart plant sciences innovation. Mundane, hypertechnical and unspectacular, second-stage patent jurisprudence in plant sciences will none the less confront the most sensitive policy problems that arise within the patent system.

This chapter identifies two doctrines of patent scope that are likely to be implicated in calibrating the utility patent system for plant sciences: enablement and experimental use. It examines how those doctrines have been applied to date in plant sciences and offers some suggestions for the next steps in refining them to effectuate patent system calibration. Although these suggestions have implications for the substantive content of the doctrines, they are directed principally at rationalizing the process through which the doctrines might succeed as a calibration tool.

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