Case 21-2322: Federal Circuit Affirms Unpatentability of Calibrachoa Plant Patent
In appeal No. 21-2322, the U.S. Court of Appeals for the Federal Circuit affirmed a finding of unpatentability for US9313959B2, a patent directed to a Calibrachoa plant variety featuring radially symmetric coloration. The appeal ran 504 days before the court issued its order affirming the underlying invalidity determination.
Federal Circuit upholds Calibrachoa plant unpatentability ruling
Appeal No. 21-2322 was filed at the U.S. Court of Appeals for the Federal Circuit on September 16, 2021, challenging a prior determination that US9313959B2 — a patent covering a Calibrachoa plant variety distinguished by radially symmetric coloration — was unpatentable. The District of Columbia region is recorded as the case region, and the verdict cause is identified as patentability, specifically an invalidity/cancellation action.
The Federal Circuit issued a terse dispositive order affirming the lower ruling: 'THIS CAUSE having been considered, it is ORDERED AND ADJUDGED: AFFIRMED.' The recorded basis of termination is 'Unpatentable,' confirming that the court upheld the finding that the Calibrachoa plant patent claims do not meet the statutory requirements for patentability. The case closed on February 2, 2023.
The 504-day appellate duration is consistent with contested patentability appeals at the Federal Circuit. The specific grounds on which the lower tribunal found the claims unpatentable — and the appellant's arguments on appeal — are not detailed in the available public record. The affirmance eliminates the asserted patent as an enforceable IP right, with consequences for any licensing or enforcement activity that depended on it.
See Complete Case & Patent Analysis →Filing to Unpatentable in 504 days
504 days from filing to Federal Circuit decision — consistent with typical inter partes review appeal timelines
US9313959B2 — Calibrachoa plant with radially symmetric coloration
Commercial breeders, propagators, and horticultural companies working with Calibrachoa varieties — particularly those involving radially symmetric or patterned flower coloration — should be aware that US9313959B2 has been confirmed unpatentable by the Federal Circuit. However, adjacent plant patents, continuation applications, or plant variety protection certificates covering similar Calibrachoa traits may still be active and enforceable.
Official order — verbatim text
The Federal Circuit's single-sentence order — 'ORDERED AND ADJUDGED: AFFIRMED' — is a summary affirmance, indicating the court found the appellant's challenge insufficient to overcome the lower tribunal's unpatentability determination. At the Federal Circuit, affirmances in patentability appeals typically signal that the underlying fact-finding or legal conclusion survived the applicable standard of review, leaving the unpatentability finding final and enforceable as a matter of appellate record.
Federal Circuit affirms: what the unpatentability ruling means for both parties
What 'AFFIRMED' means at the Federal Circuit
An affirmance by the Court of Appeals for the Federal Circuit means the court found no reversible error in the decision below. The lower tribunal's finding that US9313959B2 is unpatentable is now conclusively upheld. The patent claims cannot be revived through further appeal at this court level; the only remaining avenue would be a petition to the U.S. Supreme Court.
No reversible error foundAppellant loses enforceable rights in Calibrachoa plant patent
With the affirmance, the appellant's patent US9313959B2 covering the Calibrachoa plant with radially symmetric coloration is confirmed unpatentable. Any licensing programs, enforcement actions, or commercial exclusivity strategies that depended on this patent are extinguished. The appellant cannot assert the cancelled claims against third parties in future proceedings.
Patent rights extinguishedAppellee's unpatentability win is now final at this level
The appellee — who prevailed in the underlying invalidity or cancellation action — now holds a Federal Circuit-affirmed determination of unpatentability. This creates a strong precedential posture: the specific Calibrachoa plant claims at issue cannot be enforced against them or, following cancellation, against any third party. The risk of further appellate challenge at the Federal Circuit is fully resolved.
Invalidity confirmed on appealOrnamental plant IP: sector impact of affirmed unpatentability
Affirmance in a plant patent or plant patent application context signals that the Federal Circuit scrutinises ornamental plant variety claims under the same patentability standards applicable to other patent categories. Competitors and breeders in the Calibrachoa and broader ornamental plant sector may view this outcome as reducing the patent clearance burden around radially symmetric coloration traits, though each variety's IP status must be independently assessed.
Ornamental plant IP risk reducedFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Plaintiff | Individual | Appellant — holder of US9313959B2 covering a Calibrachoa plant with radially symmetric colorationSearch in Eureka ↗ |
| Defendant | Defendant | Individual | Appellee — prevailing party in the underlying unpatentability proceeding before the Federal CircuitSearch in Eureka ↗ |
| Presiding judge | Judge N/A | Judge | Court of Appeals for the Federal CircuitSearch in Eureka ↗ |
R&D signals in the ornamental plant IP space
Forward-looking patent and innovation intelligence derived from case 21-2322 and the broader Calibrachoa and ornamental plant IP landscape — relevant to breeders, plant patent filers, and horticultural R&D teams.
Appellant's plant patent filing activity in Calibrachoa
The holder of US9313959B2 may maintain additional plant patents or pending applications covering other Calibrachoa traits or varieties. Monitoring the appellant's filing activity — including continuations, divisionals, and related plant variety protection filings — can reveal the scope of their remaining IP position in the ornamental horticulture space after this cancellation.
Portfolio monitoringFiling trends in ornamental Calibrachoa coloration patents
Radially symmetric and patterned flower coloration in Calibrachoa has attracted patent filings from multiple breeders globally. Tracking recent US plant patent grants and international PVP certificates for Calibrachoa coloration traits helps identify which competitors are actively building IP positions in this ornamental segment and where the prosecution success rate is trending.
Filing trend analysisAppellee's patent position in ornamental plant breeding
The appellee, having successfully defended the unpatentability challenge, may hold its own IP assets in the ornamental plant space. Profiling the appellee's granted plant patents, plant variety protection registrations, and pending applications reveals whether they are building offensive or defensive IP positions in Calibrachoa and adjacent ornamental genera.
Competitor landscapeAdjacent Calibrachoa traits with open patentability space
With the coloration symmetry claim cancelled, there may be white space in adjacent Calibrachoa phenotypic traits — including growth habit, disease resistance, cold tolerance, and non-radially-symmetric coloration patterns — where novel variety claims could still achieve patentability. Eureka's landscape analysis can surface uncrowded claim areas for plant patent prosecution strategy.
White space opportunitySimilar plant patent unpatentability appeals at the Federal Circuit
Explore related Federal Circuit appeals involving plant patent and ornamental variety patentability challenges — cases that share the same appellate court, invalidity posture, and ornamental horticulture technology area as case 21-2322.
What this case signals for ornamental plant IP strategy
The Federal Circuit's affirmance reinforces patentability scrutiny in the ornamental plant sector — with direct implications for breeders and IP holders.
Ornamental plant patents face full Federal Circuit patentability review
This affirmance confirms that the Federal Circuit applies rigorous patentability standards to plant patents and plant patent applications. Breeders and IP counsel should ensure that novel variety claims are supported by robust distinctness and novelty evidence before filing or asserting, particularly for traits like coloration patterns.
Unpatentability affirmance clears the field for Calibrachoa competitors
With US9313959B2 confirmed unpatentable, commercial growers and competing breeders working with Calibrachoa radially symmetric coloration traits face a reduced IP clearance barrier at least with respect to this specific patent. Companies active in this ornamental plant segment should update their freedom-to-operate analyses accordingly.
Plaintiff v Defendant — key questions answered
The Court of Appeals for the Federal Circuit affirmed the unpatentability of US9313959B2, a plant patent covering a Calibrachoa variety with radially symmetric coloration. The recorded basis of termination is 'Unpatentable,' and the case closed on February 2, 2023, after 504 days.
US9313959B2 is a plant patent directed to a Calibrachoa ornamental plant variety characterised by radially symmetric coloration. The Federal Circuit affirmed the underlying unpatentability determination; however, the specific statutory grounds on which the claims were found unpatentable are not detailed in the available public record.
The affirmance extinguishes any enforceable rights under US9313959B2. The patent holder can no longer assert the cancelled claims against competitors. Commercial growers and breeders working with Calibrachoa radially symmetric coloration traits face a reduced IP clearance burden from this specific patent, though other related plant patents or PVP certificates may still apply.
A US plant patent protects asexually reproduced, distinct, and new plant varieties and is granted by the USPTO. A Plant Variety Protection (PVP) certificate, issued by the USDA, covers sexually reproduced or tuber-propagated varieties. Both can protect ornamental Calibrachoa varieties, and the cancellation of a plant patent does not affect any separately held PVP certificates covering the same or similar traits.
Following a Federal Circuit affirmance, the only remaining avenue for further review is a petition for a writ of certiorari to the U.S. Supreme Court. Such petitions are granted rarely. For practical purposes, the unpatentability finding is final unless the Supreme Court agrees to hear the case, which the available record does not indicate has been sought.
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