WinGen sought a utility patent for a new flower called “Cherry Star.” It claimed how the flower looked and added a limitation to the genetics of the flower. The Patent Trial and Appeal Board (PTAB) of United States Patent and Trademark Office (USPTO) denied the patent based on public use because more than one year before the patent application was filed, at a private event without any confidentiality restrictions, “Cherry Star” was displayed at a Home Depot.

The Federal Circuit affirmed the USPTO. It viewed the issue as one of first impression, stating, “Although our precedent includes a plethora of cases analyzing what constitutes a use ‘accessible to the public,’ what is necessary for an invalidating prior public use of a plant has not been considered at length by this court.” Even as an issue of first impression, the decision was not designated as precedential.

A possible explanation for the decision to designate the opinion as nonprecedential is that, although the patent applicant contended that “the Board erred in finding prior public use when all of the claimed features (e.g., the plant genetics) were not made available to the public,” the patent applicant’s argument to the Board did not meaningfully present the genetics issue and was forfeited. Thus, the Federal Circuit did not address what would be a significant precedential question of whether and how attendees at a plant display, lacking physical possession of the plant, could discern that a plant had a claimed genetic character so as to invalidate a claim with aesthetic and genetic features. Instead, the Federal Circuit viewed the claim as being directed to an ornament and that display of that ornament was a public use, which is a less interesting question.

This case stands as a warning to patent applicants to use their best arguments to the PTAB in the first instance when presenting their ex parte appeals to the USPTO.