Planting a Standard: Proposing a Broad Reading of In re Elsner
This Note will show that one can read Elsner broadly to encompass both plant-type and widget-type inventions, and that applying Elsner to both plants and widgets is within the current statutory framework and case law. Such a reading would change the § 102 bar for inventions patentable under § 10i29 (hereinafter referred to as “widgets”) as well as for plants. Part I of this Note argues that congressional sources require a flexible test-one that does not prejudice any objects under the Patent Act. Part II discusses the judicial interpretation of the Patent Act prior to Elsner in order to argue first, that past cases disfavor discrimination based on invention type and second, that courts have already applied a broad reading of Elsner to non-plant inventions. Part III shows that the move toward harmonization of U.S. laws with international standards is especially strong in intellectual property. As a result, Part III argues that courts should pay attention to international sources and harmonize U.S. laws with international standards. Such harmonization requires considering foreign sales as prior art for all inventions. Thus, courts should apply the Elsner‘s “possession test” to plants and § 101 inventions, effectively removing the territorial boundary for sales that make inventions accessible to the U.S. public.