The United States Patent and Trademark Office "USPTO" recently added Nonprovisional Plant Applications under 35 U.S.C. § 161 as a new submission type in Patent Center and has instructed practitioners that such plant patent applications should be filed under this new submission type. In response to the COVID-19 pandemic, the USPTO began permitting the filing of plant patent applications and follow-on documents via the USPTO patent electronic filing systems (now Patent Center) on a temporary basis until further notice (as an "extraordinary situation" within the meaning of 37 C.F.R. § 1.183).
At that time, the USPTO required practitioners filing in Patent Center to indicate on the appropriate screen that a utility patent application was being filed, since Patent Center previously provided no option for a plant patent application. Now, practitioners may continue to submit plant patent applications in accordance with 37 C.F.R. § 1.163 and should continue to follow the USPTO's filing requirements for plant patent applications as provided in the USPTO's original May 2020 notice, but they should carefully select the correct new submission type when filing in Patent Center.
At the time of writing, follow-on documents may continue to be filed in Patent Center under existing submission types, and while the Patent Center website now provides that users will be provided a specific track to submit provisional and nonprovisional plant patent applications in Patent Center, provisional plant patent applications are not an available submission type (yet). Additionally, practitioners should keep an eye out for the "coming soon" ability to submit Track One Prioritized Examination for Plant Applications, as teased on the Patent Center website. Despite the original temporary basis for the electronic filing of plant patent applications, this recent progress may mean the electronic filing of plant applications has taken root—at least for the time being.
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