Evening star. [volume] (Washington, D.C.) 1854-1972, 1930-06-22
PLANT PATENT LAW
ydANGLESA ARE SEEN
Specialists Left BreathIesS
as They Consider involved
Questions Likely to Arise.

Gus Department of Agriculture special
lists when they consider the almost in
Unite complications that may arise, at
least theoretically from the measure
Just passed by Congress making plants
patentable.
i They are lying awake nights think
Ing about it and are left breathlesS
when they consider the delicate and in
Volyed questions likely to arise. They
are not lawyers and know very little of
legal tangles, but then, they reflect,
lawyers are not botaniStS and know still
less about the laws of heredity and en-
Nronment in the vegetable kingdom.
1t Is the main topic of conversation
In the department Offices these days.
The scientists are loath to talk for pub
lication. But they see the birth of an
entirely new profession in the biologi-
cal lawyer, the employment of a small
army of specialists, establishment of
enormous botanical test gardens all
over the country and a continual sue
cession of decisions called for on fine
pointS-altogether a puzzle compared
with which the extremely complicated
patent law of the past will seem rather
simple.
AUTHORIZES Patents on PIantS
The measure authorizes the issuance
vented or discovered and aSexually re-
produced any distinct or new variety Of
plant other than tuber- propagated
plant" It also provides for the detail
ing of Agricultural Department en-
ployes for the scientific work necessary
in carrying out the act.
Thus the law has plunged headlong
into the infinitely deep waters of
heredity, environment, behavior of hv-
ing organisms, and the basic principles
of life itself. Hitherto patents have
been restricted to the fields of physics
and chemistry where every factor in an
invention is under the control of q
manipulation. The machine always does
as it is told to do. The same mechani-
cal principle will work the same way
everywhere and forever.
But, the botanists point out, plants
Characters are not stable regardless Of
environment. Such qualities as color,
size, texture, hardness and prolificity
of fruit and flowers are likely to change
with climate, chemical structure of the
SOL, degree OF moisture, relative length
Of night and day, and hundreds of other
factors concerning which science may
know nothing. For instance, a man in
Washington might breed q new variety
OF apple which was very large and juicy,
but only moderate bearer and, pre-
sumably, obtain a patent on 1t. But
one OF his saplings might be purchased
Dy farmer in Texas and, under the
conditions of q different environment,
this might give an extremely abundant
crop OF smaller apples somewhat diff
1erently colored. Would the Texan be
entitled to repatent the tree as q Diff
ferent variety2 Or suppose he crossed
IL with still another unpatented variety
and obtained seeding which behaved
somewhat differently from either parent
and propagated this by gratis or cut
ungs. II he sold any Of his plants
would the Washington inventor be
entitled to sue him for infringement
OF his patent rights by making use of
MS invention as part of another
invention?
York Imperial Apple Typical.
:. A typical case, it was pointed out, is
that OF the York Imperial apple grown
extensively in York County, Pa. the
Snenandoah Valley of Virginia and In
Northern Michigan. But the Michigan
product differs so strikingly from that
81 Virginia that almost any horticul-
turiSt would classify it offhand as q dis
ttnct variety II he did not happen to
know its history. But when Michigan
happens to have q long, dry, hot Sum
n1er, comparable to the Virginia Sum-
mer. the differences disappear and the
apple Is the same from both localities.
The York Imperial is one of the most
distinctive apples in existence. II such
questions arise in this case, the botanists
ask, what viii be the complexities with
far more variable and less sharply de-
Aned varieties?
s These questions are Of real signif-
eance to the botanists who know some
thing Of how plants behave and realize
still more how little anybody knows re-
garding one Of the most complicated
questions of science. They know that
plant is an infinitely more complicated
machine than any physical machine
ever constructed.
There is no way. they say, to predict
with any surety how q bush that acts
one way In Massachusetts will act In
California. The only way to md out Is
70 test It out in both places and In
every other part Of the country where
physical conditions vary enough to be
likely to affect any Of the characters
Involved. This, it is believed, viii call
Tor the establishment Of giant test
gardens in at least q dozen sections
gardens large enough to grow every
variety for which patent Is applied.
Inventions without Limit.
: The number Of such inventions or
discoveries" which anybody can make
Is entirely without limit. The seeds
from any apple bought from the corner
fruit stand. II they viii grow, win prob
ably produce q half dozen new "varf-
cites" of apples, and these can be per-
petuated by cuttings or gratis. All
may be patentable under the new law.
The only question Is whether they are
worth the patent fee. Under the pres
ent system usually thousands Of seed
aings are discarded before one is found
considered worthy Of perpetuating.
No variety which has existed previ-
Gus to the passage of the act can be
patented. But there have been 50 many
Varieties of some shrubs, such as roses,
brought forward at one time or an
other that probably no living man
knows all Of them. Tremendous re-
search problems, possibly extending over
years viii be involved
Only plants "asexuaily reproduced"
ere patentable. This greatly stmplifles
The problem by throwing out Of con.
sideration everything generally raised
from seed, such as vegetables, grains
and garden flowers. Nothing is patent
able that cannot be rooted from q cut
sing or perpetuated by grating on an:
course, must be obtained from seed or
through one of those tnexplicable
freaks Of nature-an accidental sport.
Such is the case, for example, when q
red rosebush sends out o shoot that
bears white roses and cuttings from
This shoot continue to produce white
%oses when rooted as new plants.
Another problem bound to arise, the
botanists say Is that Of how small o
Sariation from some existing species
&laAil be considered to Constitute q new
svariety" There is little agreement on
che meaning OF this term. Every living
Ahing, they point out, differs from
every other living thing. whereas two
machines are almost exactly the same.
u any of the individual characters Of
D plant OF branch OF . plant can be
perpetuated IN q cutting 1t constitutes