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.