## Facts

- A peach tree seedling appeared in a homeowner’s residential yard; the homeowner cared for it for several years but believed it was an ordinary peach tree.
- William Moore, an orchard-tree expert and acquaintance of the homeowner, observed the tree and concluded it was an unknown, distinct variety.
- With the homeowner’s permission, Moore took grafts and asexually reproduced the tree; the progeny reproduced true-to-type.
- Moore filed a plant patent application for the new peach variety in his own name.
- The examiner rejected the application, reasoning that the homeowner, as the first person to “find” the tree, was the statutory “discoverer” under 35 U.S.C. § 161.
- Moore appealed the rejection to the Patent Office Board of Appeals.

## Issues

1. Under 35 U.S.C. § 161, who qualifies as the “discoverer” of a “newly found seedling” when one person first encounters the plant and another recognizes its novelty and asexually reproduces it?
2. Whether physical happenstance “finding” alone is sufficient to establish plant-patent discoverer status, or whether recognition of distinctness plus asexual reproduction controls.

## Decision

- The Board reversed the examiner’s rejection.
- The Board held that a plant patent may issue to the person who recognizes the seedling as a distinct and new variety and asexually reproduces it, even if another person first noticed and nurtured the original plant.
- The Board rejected a “first finder” approach that would automatically assign discoverer status to the landowner or initial observer.

## Legal Principles

- For plant patents covering “newly found seedlings” under § 161, “discovery” is tied to identifying the plant’s distinctness in a patent-relevant sense, not mere physical encounter or land ownership.
- The statutory requirement that the applicant “discovers and asexually reproduces” is satisfied by the individual who (1) recognizes the new variety and (2) successfully asexually reproduces it.
- The Plant Patent Act’s coverage of “newly found seedlings” (as amended) targets seedlings arising in cultivated settings and brought into reproducible form through deliberate horticultural activity, distinguishing them from plants found in an uncultivated state.

## Conclusion

The Board concluded that, for a newly found seedling in a cultivated environment, the proper plant-patent “discoverer” is the person who identifies the plant as a distinct new variety and asexually reproduces it, even when another person first encountered and cared for the original specimen.


Ex parte Moore, 115 U.S.P.Q. 145 (Pat. Off. Bd. App. 1957)