Your USPTO: Magic Moment – How Plant Patents Sprout

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The 1930 Act was the culmination of changing agricultural and market conditions in the United States

Last month on these pages, we told you about the invention of the umbrella that can protect you from April showers. We’re now going to tell you about Mayflowers – specifically the beginnings of intellectual property protection for new plants and the emergence of plant patents – to celebrate the passing of the US Plant Patent Act of 1930, 92 years ago this month.

People have intentionally created new varieties of plants for thousands of years, since the dawn of agriculture. When people started growing for profit, the only intellectual property protection available for new plant varieties was trade secrets.

At the end of the 19th century in the United States, you could also protect the brand name referring to the variety, but you could not protect the variety itself. Anyone could reproduce it, cultivate it and sell it.

Historian Stuart Banner wrote: “At a time when farming was a local, small-scale activity and farmers obtained their own seeds from the previous year’s plants, no actor could profit greatly from patents on plants or animals, and there was no organized political force capable of supporting an effort to change the law.

“These circumstances changed in the second half of the 19th century, as agriculture became more consolidated, farmers began to produce more for the market, and farmers increasingly began to acquire seeds and seedlings from seed companies rather than producing them themselves.”

Seed companies wanted intellectual property protection for new plant varieties and began to push for it. They also started the discussion in the horticultural press.

In the early 20th century, some horticulturists and farmers called for legislation to allow plant patents. Companies that supplied plants to farmers organized coalitions of nurseries and trade organizations, which wrote letters to Congress calling for plant patent legislation.

According to research by USPTO historian Adam Bisno, “People argued that experimenting with new plant varieties was really hard work and should be rewarded.”

But some people worried that patents – which are exclusive rights for the holder – would drive up food prices. And how would it be possible to determine whether a plant variety is new? What about the seemingly endless number of patents that could result from all the adaptations made by nature?

Congress drafted a bill with the support of many people, including Thomas Edison and the U.S. Commissioner of Patents. The Plant Patent Act of 1930, signed by President Herbert Hoover on May 23, was a compromise.

The new law satisfied the agriculture lobby by providing some intellectual property protection for new plant varieties, but also satisfied critics of plant patents by excluding new seed-bred varieties. The only varieties protected by law would be plants reproduced asexually (by grafting or similar processes, and not by fertilized seeds).

Many of the earliest plant patents were for flowers, particularly roses. The first U.S. plant patent was filed by landscape gardener Henry F. Bosenberg on August 6, 1930, and issued on August 18, 1931. The abstract of the patent describes “improvements to roses of the type known as climbing roses or climbers…”

In the early 1930s, patent applicants filed duplicate drawings and specifications. The original remained at the Patent Office; the copy went to the Ministry of Agriculture for expert evaluation. An oath accompanied these documents, stating that the plant had been asexually reproduced and not shown to the public until May 23, 1930.

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