## Facts

- The U.S. Department of Agriculture (USDA) developed two table-grape varieties and filed plant-patent applications on September 28, 2004.
- The California Table Grape Commission held an exclusive license and sublicensed California growers, who paid fees to grow and sell the patented varieties.
- Before filing, USDA held an open house where only mature grapes were displayed; no propagating materials or information enabling propagation were distributed.
- A grower obtained unauthorized cuttings for the two varieties and shared them with a cousin; neither was an authorized licensee during the relevant period.
- The unauthorized growers agreed not to sell grapes from the vines until after September 28, 2003 (the § 102(b) critical date).
- Before the critical date, one grower planted 108 vines of one variety and 650 vines of the other; the vines were visible from a public highway but unlabeled and not identifiable as the specific varieties.
- The grower showed the unlabeled vines to a business partner at least twice; they understood the early access provided a competitive advantage and agreed to keep the vines and plant material confidential.
- No grapes from these vines were sold before the critical date; sales began only after September 28, 2003.
- Delano Farms Company and Four Star Fruit, Inc. sued to invalidate the patents under 35 U.S.C. § 102(b), arguing the unauthorized plantings and limited disclosures constituted an invalidating public use.

## Issues

1. Whether unauthorized third-party planting and limited exposure of patented grape vines more than one year before filing constituted an invalidating “public use” under 35 U.S.C. § 102(b).
2. Whether roadside visibility, limited viewing by a business associate, and a confidentiality understanding defeated a finding of public use where the public lacked access to propagating material or identifying information.

## Decision

- The Federal Circuit affirmed the judgment after bench trial upholding the patents’ validity.
- The court held the unauthorized third-party activities did not constitute an invalidating public use under § 102(b).
- Visibility of unlabeled vines from a public road did not make the invention publicly accessible in an enabling way.
- The growers’ confidentiality understanding and lack of pre-critical-date sales supported finding no public use.
- Misappropriation and third-party use were not automatically “public use”; the dispositive question was public accessibility.

## Legal Principles

- A § 102(b) public use generally requires public accessibility that places the invention in the public domain; secret or confidential use typically does not.
- Third-party use can qualify as public use even without the inventor’s knowledge, but only when the use is not effectively confidential and is accessible to the public.
- Mere visibility of an invention does not establish public use if it is non-enabling—i.e., the public cannot identify the invention or learn how to make and use it from the exposure.
- Absence of pre-critical-date commercialization is relevant to whether use was sufficiently public to trigger § 102(b).

## Conclusion

The Federal Circuit concluded that unauthorized plantings of grape vines, though partly visible and shared with a business associate, remained effectively confidential and non-enabling to the public, so they did not trigger the § 102(b) public-use bar and the plant patents remained valid.


Delano Farms Co. v. Cal. Table Grape Comm’n, 778 F.3d 1243 (Fed. Cir. 2015)