[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:

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.

PRESIDENT'S ADDRESS

Prof. J. A. Neilson, East Lansing, Mich.

This is our twenty-first meeting and the first one to be held in the state of Iowa where tall corn grows, where good nuts thrive and good people live. We are glad to come to the midwest and meet some of its people, and see what our friends the Snyder Brothers and others are doing to extend the culture of nut trees in Iowa and other midwest states.

In looking over the records of the past year we find the usual experiences common to the lot of man. We find loss and gain, sorrow and joy. Our sense of loss and sorrow is heightened when we think of the passing of our good friend and efficient secretary Mr. Henry D. Spencer of Decatur, Ill. His sudden death was a shock to us all and we feel that his passing is a distinct loss not only to our association but to his city and state. It is also a loss to us as individuals in the severance of those helpful friendships which do so much to cheer us on our way and make life worth while.

In association matters, Mr. Spencer was most active and efficient. He was zealous, original and energetic, and did a lot to create interest in nut culture in his state and other midwest areas. Of him, as of others who have labored faithfully for an ideal and passed to their reward, may it be truly said, "The just die in their turn, but falling as the flowers, they leave on earth their fruit that outlives them."

While we have lost a capable secretary and good friend we have been fortunate in securing the services of Dr. A. S. Colby as a successor to Mr. Spencer. The news of Mr. Spencer's passing came just before your president left Lansing to address the Illinois State Horticulture Society on nut culture. In casting about for a new secretary, it occurred to me that Dr. Colby was the logical man for the position. While at Urbana where the Horticultural Society met I broached the matter to Dr. Colby. At first he was unwilling but after some discussion he finally consented to take the position provided the university authorities at Urbana would agree to his taking on new duties. Dr. Blair, head of the Horticultural Department at Urbana, was then approached on the matter and graciously consented to allow Dr. Colby to assume the secretaryship for the balance of the year. Dr. Colby has fulfilled his position in a very capable manner and I am sure the other executives and members are grateful to Dr. Colby and Dr. Blair for their cordial cooperation and help in our time of need.

As president I am also deeply grateful to our good and faithful friend Dr. W. C. Deming for taking over the duties of secretary while Dr. Colby was in England attending the World's Horticultural Congress in London, and enjoying a well deserved holiday. I trust Dr. Colby has returned to his duties with renewed zeal and increased knowledge and I hope he will be able to share some of that knowledge with those of us who were not fortunate enough to attend that great congress of horticulturists.

At our last meeting our late Secretary, Mr. Spencer, outlined the worthy scheme of staging a nut exhibit at the Chicago Garden and Flower Show, held in the stadium at Chicago. Considerable work was done by Mr. Spencer before he died, and afterward by Dr. Colby when he took over the secretaryship. Your president was able to assist Dr. Colby in various ways, such as staging the exhibit, in helping financially, and in personally attending the exhibit for five days. This exhibit of nuts was made up of entries from Indiana, Illinois, Iowa, Ohio, Michigan, Ontario and British Columbia. It attracted a great deal of attention and I am sure was the means of creating interest and disseminating a lot of useful information on nut culture. We were ably assisted in this project by Mr. J. W. Wilkinson of Rockport, Indiana, and Mr. Frank Frey of the Rock Island Railway, Chicago. Both of these gentlemen contributed valuable exhibits and gave generously of their time during the progress of the exhibition. Our past president, Mr. Snyder, also sent very useful exhibits.

In the carrying out of his duties as Specialist in Nut Culture for the Michigan State College, your President feels that some progress has been made since April, 1929. During that period arrangements have been definitely made, or are about to be made, by that princely public benefactor, Mr. W. K. Kellogg, which will set aside several hundred acres for nut culture. About thirty acres of this area have already been planted to seedlings and grafted walnuts, chestnuts, hickories, heartnuts, hazels, and filberts. These trees have done as well as could be expected under the hot, dry weather of these past two summers. Arrangements are actively under way for planting 55 acres next spring and a much larger area in the following spring. We expect to assemble a first class collection of the best hardy varieties of native and introduced nut trees and hope as the years roll on that definite progress will be made.

In September 1929, a nut contest was drawn up and announced to the public of Michigan and adjoining states. This contest created a great deal of interest and many entries were received. Cash prizes of $50.00 each were offered for walnuts and hickories and awards of merit were given for other species. There were 451 plates composed as follows: black walnuts 313, English walnuts 11, butternuts 7, heartnuts 7, Japanese walnuts 13, hybrid walnuts 4, hickories 85, chestnuts 10, hazels 1.

These entries were used in staging what is said to be the largest exhibit of nuts ever displayed in the northern United States. From these numerous entries several selections of value were made. From these selections, six black walnuts, two heartnuts, three hickories and four chestnuts were chosen for propagation. Some of these have been propagated and plans are made to propagate a greater number next year.

The writer spent one week in Ontario during March for the purpose of introducing scionwood and trees of promising varieties of English walnuts, heartnuts and hybrid walnuts. Thirty trees of the Carpathian strain of the Persian walnut were introduced and all are now alive on our grounds at Lansing. These Carpathian walnuts have endured several winters at Toronto and Montreal and so far have not shown any winter injury. If further trials show that this strain is hardy it will be a decided improvement over any other Persian strain in the northern states or Canada.

Good varieties of heartnuts and filberts were brought in from British Columbia and are now growing nicely at the Kellogg Farm.

Grafting demonstrations were given at nine different places throughout the state during the month of May. These demonstrations were attended by fair sized audiences and much interest was shown in the operation.

In addition to the address before the Illinois Horticultural Society, your president gave an address on nut culture to the Michigan State Horticultural Society at Grand Rapids in December last, and also had on display a large collection of Michigan nuts. The address on nut culture and the display of nuts created considerable interest. He was also invited to address the Iowa State Horticultural Society on nut culture and the Iowa State Nurserymen's Association on the paraffin treatment of nursery stock, but could not do so because of a previous engagement. Arrangements have been made however to give these addresses at the meeting of the above associations at Shenandoah, Iowa, in November next.

The ancient parable of the sower who went forth to sow and who scattered seed on stony ground, by the wayside and on good soil, had a successful manifestation in the president's experience this last year. In March, 1929, I gave an address on nut culture to a small but influential audience in St. Thomas, Ontario. This meeting was due to the enterprise of Dr. C. C. Lumley, the capable secretary of the Chamber of Commerce in St. Thomas and one of our valued members. At this meeting I displayed a collection of Canadian grown nuts and suggested the use of nut trees for roadside and ornamental planting as well as for other purposes. These suggestions fell on rich soil, figuratively speaking, and bore fruit in an astonishing manner. In a short time an Elgin County Nut Tree Growers' Association was organized and a definite plan of operations outlined. One of the projects consisted in planting the Kings Highway, No. 3 in Elgin county, with walnut trees. With the cooperation of horticultural societies, service clubs, schools, etc., over 7000 nut trees were planted in one day last spring, and besides that more than 4000 other nut trees were planted on the home grounds of the people in this county. The encouraging feature of this project was the statement by Dr. Lumley that your president was the inspiration of all this planting. Without a sympathetic and energetic audience I could not possibly have done much by myself, and I am sure Dr. Lumley and his associates deserve great credit for their vision and energy. May their numbers be multiplied and their shadow never grow less. "And some seed fell on rich soil and brought forth a hundred fold."

You will very likely be pleased to learn that your president is interested in an advisory capacity in a project having for its object the gift of a good nut tree to every member of the Women's Institute of Ontario. This organization is composed almost entirely of rural women and is one of the most active and helpful societies in the country. The institute gave me hearty support in my efforts to promote the culture of nut trees in Ontario, and on several occasions passed resolutions asking the government to adequately support my work. There are over 40,000 women in this organization and it will take time and money to accomplish the objective, but no worthwhile movement ever progressed without a vision and a plan.

In conclusion I would like to read a beautiful little selection entitled "Save the Trees in Portugal." In reading this I am going to ask you to transpose the title to "Save the Trees in the Mid-West," and to think in terms of nut trees.