"PLANT PATENT ACT"

By Thomas P. Littlepage, District of Columbia Bar, Washington, D. C.

The plant patent act is an effort by Congress, as stated in the Committee reports on this bill, "to afford agriculture, so far as practicable, the same opportunity to participate in the benefits of the patent system as has been given industry, and thus assist in placing agriculture on a basis of economic equality with industry." The act is rather short and is set forth below:

[Public—No. 245—71st Congress]

[S. 4015]

An Act To provide for plant patents.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That sections 4884 and 4886 of the Revised Statutes, as amended. (U. S. C., title 35, secs. 40 and 31), are amended to read as follows:

"Sec. 4884. Every patent shall contain a short title or description of the invention or discovery, correctly indicating its nature and design, and a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery (including in the case of a plant patent the exclusive right to asexually reproduce the plant) throughout the United States and the Territories thereof, referring to the specification for the particulars thereof. A copy of the specification and drawings shall be annexed to the patent and be a part thereof.

"Sec. 4886. Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, or who has invented or discovered and asexually reproduced any distinct and new variety of plant, other than a tuber-propagated plant, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceeding had, obtain a patent therefor."

Sec. 2, Section 4888 of the Revised Statutes, as amended (U. S. C., title 35, sec. 33), is amended by adding at the end thereof the following sentence: "No plant patent shall be declared invalid on the ground of noncompliance with this section if the description is made as complete as is reasonably possible."

Sec. 3. The first sentence of section 4892 of the Revised Statutes, as amended (U. S. C., title 35, sec. 35), is amended to read as follows:

"Sec. 4892. The applicant shall make oath that he does verily believe himself to be the original and first inventor or discoverer of the art, machine, manufacture, composition, or improvement, or of the variety of plant, for which he solicits a patent; that he does not know and does not believe that the same was ever before known or used; and shall state of what country he is a citizen."

Sec. 4. The President may by Executive order direct the Secretary of Agriculture (1) to furnish the Commissioner of Patents such available information of the Department of Agriculture, or (2) to conduct through the appropriate bureau or division of the department such research upon special problems, or (3) to detail to the Commissioner of Patents such officers and employees of the department, as the commissioner may request for the purposes of carrying this Act into effect.

Sec. 5. Notwithstanding the foregoing provisions of this Act, no variety of plant which has been introduced to the public prior to the approval of this Act shall be subject to patent.

Sec. 6. If any provision of this Act is declared unconstitutional or the application thereof to any person or circumstance is held invalid, the validity of the remainder of the Act and the application thereof to other persons or circumstances shall not be affected thereby.

Approved, May 23, 1930.

It is admitted by all who understand anything about horticulture that this act is intended to meet a long-felt want. The world owes much to many hard working scientists who have developed many valuable plants, both ornamental and edible, and up to the date of this act such producer had no way of reaping any very material financial benefit from his labors. The man who might invent some new and useful gadget for an automobile or other machinery was protected under the patent law, if he availed himself of it, but the man who developed a beautiful flower, a fine apple or a fine nut was wholly without protection.

The term "asexually" as used in the act, is generally understood by horticulturists to mean any method of producing a plant except from seed. It will be observed, in referring again to the act, that the man who discovers some new plant and propagates it by any of the methods covered by the term "asexually" can have such plant patented under the terms of this law, but the patent law is one that is always construed strictly and obviously the application for patent would have to be made in the name of the man who actually discovered the plant. Of course, after securing such patent, he could assign it the same as any other patent is assigned, but the question would constantly arise in this connection as to who actually was the first discoverer. Most of the sporadic fine plants, especially fruit and nut bearing trees, were matters of neighborhood knowledge many years before they actually attracted the attention of some one who recognized their full value and knew how to propagate them, and the question would arise immediately as to who was the real discoverer. Undoubtedly the man who tramped constantly around in the neighborhood of a fine nut or fruit tree and actually saw the tree but did not recognize its value, is like the man the poet describes when he said:

"A primrose by the river's brim, A primrose only was to him, And nothing more."

This man could not be said to be a discoverer under the terms of this law; but on the other hand the plowman who might be plodding his weary way homeward and see a fruit or nut tree bearing something unusual and who would recognize its unusual and distinct differences would be the real discoverer, but unless he could prove the fact that he had called it to the attention of others in some manner he would have difficulty in complying with the patent law and making a proper showing of originality as required by that law. But he would also, in addition to being the discoverer, have to asexually reproduce it and this he might not be able to do on account of his lack of knowledge of propagating methods.

The language of the law presents some very interesting problems to those of us who have tramped the fields and valleys in search of nut trees producing better nuts than those already propagated, and it incidently brings into the patent practice a brand new requirement. The ablest patent lawyer in America might not know the difference between a bud and a graft, a layer or cross-pollination. I have frequently had some very able lawyers who visited my farm and had their attention called to a pecan tree grafted onto a hickory, ask what kind of nuts it would bear. Of course when they ask such questions as that I promptly change the subject and begin to talk about the weather or something else; I certainly do not try to educate them in the fundamentals of tree propagation. It will also require specialists in the patent office who likewise know something of horticulture and reproduction methods of plants.

It will also be noted that the law excludes tuber-propagated plants. The Committee report states that:

"The bill excepts from the right to a patent the invention or discovery of a distinct and new variety of a tuber-propagated plant. The term "tuber" is used in its narrow horticultural sense as meaning a short, thickened portion of an underground branch. It does not cover, for instance, bulbs, corms, stolons, and rhizomes. Substantially, the only plants covered by the term "tuber-propagated" would be the Irish potato and the Jerusalem artichoke. This exception is made because this group alone, among asexually reproduced plants, is propagated by the same part of the plant that is sold as food."

It will be noted that there is quite a spread, however, between the exact language of the law and the Committee report, for example: under the law it would appear that a dahlia might be excluded, and it also raises the question, under the language of the law, as to many of the root plants, such as peonies and others. Obviously, Congress did not intend to exclude plants such as the dahlia, peony and others, as evidenced from the excerpt in the Committee report above quoted, and whether the matter of the production of a new dahlia by cross-pollination and tested out through the growth of the bulbs, can be made to harmonize with the language of the law is the question. The Committee report says that tubers mean only "Irish potatoes and Jerusalem artichokes." It always occurred to me that the sweet-potato is also a tuber, but the Committee report apparently attempts to exclude it.

There are any number of interesting questions that occur to those of us who are fortunate enough to have some knowledge of the law as well as a few fundamental principles of horticulture, but in spite of whatever weakness the law may or may not have, it is undoubtedly a step in the right direction, and meets a long-felt want.

The Secretary of Agriculture said in his letter to the Committee:

"The proposed legislation would appear to be desirable and to lend far-reaching encouragement to agriculture and benefit to the general public."

Thomas A. Edison, who is also quoted in the Committee report, said:

"Nothing that Congress could do to help farming would be of greater value and permanence than to give to the plant breeder the same status as the mechanical and chemical inventors now have through the patent law. There are but few plant breeders. This (the bill) will, I feel sure, give us many Burbanks."

It is certainly to be hoped that many of those interested in northern nut culture, as well as in fruits and ornamentals, will avail themselves of the privileges of this bill to give us something better. We are not satisfied with our varieties today and should not be. The greatest problem in nut culture, as well as fruit and ornamentals, is the question of variety. It will also be the most important question a hundred years from now, but the man who produces these better varieties should do so with the knowledge that under this law the fruits of his labor will be protected and he will at least have the same opportunity to receive remuneration therefrom as the inventor of a gadget.

Dr. Colby: I have talked with a number of men interested in the law. While they agree that it is a step in the right direction they feel that it will be a rather difficult thing to administer it. Plants differ from other objects or things or "gadgets" and considerable experience will be necessary on the part of the administration before the law will be made workable.

A banquet was held at the Hotel Montrose on the evening of September 17 at which about forty members and guests were present. The menu follows, and it will be noted that nuts were featured:

Canape, Montrose

(Dates stuffed with Nuts)

Iced Celery

Mixed Nuts

Queen Olives

Soup, Rothschild

(Garnished with Chestnuts)

Roast Young Capon Stuffed, Hickory Nut Dressing, Jelly

Au Gratin Potatoes

Puree of Chestnuts, Baked

Frozen Fruit & Nut Salad, Cream Nut Dressing

Wafers

Hot Parkerhouse Rolls

Black Walnut Ice Cream

Nut Layer Cake

Coffee

After the banquet the President spoke as follows:

Once upon a time I read a poem, which unfortunately I do not have here but in effect it was this: In our progress through life a great deal of injury is wrought by not showing our appreciation of people while they are with us. Let us give them our flowers now. We do want now to say a few things about the founder of our organization. In my history of this association Dr. Deming was the person who first proposed an association of this kind. I believe this was about 21 or 22 years ago, perhaps longer than that. At any rate the association has been going for some time and it was brought into existence through the thought of Dr. Deming. We should be very glad to hear from Dr. Deming.

Dr. Deming: Thank you. It is very gratifying indeed but I wish you hadn't. It is very difficult to express gratitude properly. I cannot make a speech like our friend Dr. Smith here, who I hope will make one. I can't tell a good story like our President. In fact, I feel like that man who said, "How happy is the moron, he does not give a damn. I wish I were a moron. My God! perhaps I am."

David Fairchild says that it takes the energies, the fortunes and the lives of pioneers, the best people of our country, to build up a new plant industry. I congratulate you all in being included in that class of pioneers, the best people of this country. But we haven't yet built up the great nut industry that we would like to build.

I might tell you how the idea of the nut growers association arose. In 1907 I got a little farm of forty acres in Connecticut. In 1908 I read an article by Dr. Morris, "Nut Culture as a Side Line for Physicians." I immediately wrote the doctor and he said in fifteen years I could have an income of $100.00 an acre from nuts alone. That seemed to me exactly what I wanted, $4,000 a year and live very comfortably. So I bought all the nut trees I could find. I bought nut trees from every nursery in this country that offered them in the North. I got pecans from the South. I sent to California and got filberts and English walnuts. I sent to Europe for English walnut seeds. I bought twenty acres of chestnut sprout land and grafted the sprouts. Just as the chestnuts were beginning to bear the blight came along. That ended them. The English walnuts I set around in fence corners and they grew a little smaller every year and, finally disappeared. That was the end of the English walnuts. At that time I couldn't graft hickories. With great labor I collected hickory scions and sent them to nurseries in the South and had them grafted. They arrived in the North after the ground had frozen. I told the hired man to heel them in. He heeled them in but left the top of the roots out. In the spring they were all dead. By that time my dander was up a little. I thought there must be other men who were having the same trouble. If we could have a little organization we could tell each other our troubles and perhaps work them out together. I wrote Dr. Morris, John Craig, Professor Close, Mr. Hales, and one or two others, and we met together in the Botanical Museum in Bronx Park and organized the Northern Nut Growers Association. That is all I had to do with it. Whether we will ever come to the place where they will have bands out and ticker tape flying, when we come to town—that is the thing I used to dream about a little when we first started. But I don't think we are destined to burst wide the gates of fame yet. We may after we have achieved our objects. As Dr. Fairchild has said, all our money, lives and energies must be devoted to them. We then may achieve post-mortem fame.

I want to say one thing, however, before I stop. We can't advocate the planting of nut trees if there are no nut trees to be had. Therefore, I think the Northern Nut Growers Association should do all that is possible to encourage the nursery men who are propagating nut trees. We should consider the propagating nursery men as a vital and essential part of the work we are trying to do.

The President: Dr. Deming made some reference to stories. Once in a while a story does flit across my mental horizon. I want to tell you how the word "nut" may have a very humorous interpretation. Once upon a time in Michigan a man died. After he died the local minister went around to console the widow. When he came of course the lady was grieving. This clergyman was a very young man and he attempted to console her thus: "Now, my dear Mrs. Smith; that which you see is just the husk, the nut has gone to heaven." Another time I addressed the Women's Canadian Club. I was invited to address this group on nut culture and the President in introducing me told a story about a minister too. In this case the minister got up in his pulpit and made an announcement: "My dear friends, my sermon is on liars. I am glad to see so many present." This lady said, "Of course, Mr. Neilson cannot say 'I am going to talk today on nuts, I am glad to see so many present'." I would like to give you an outline of the progress made during the past year. In writing this I had to inject into it a great deal of my own activities. I simply couldn't get out of it. I ask you to overlook the frequent references of a personal nature.