The Plant Patent Act of 1930 (enacted on 1930-06-17 as Title III of the
Smoot–Hawley Tariff, ch. 497, , codified as
35 U.S.C.
In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
br>
Ch. 15 is a
United States federal law
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as va ...
spurred by the work of
Luther Burbank
Luther Burbank (March 7, 1849 – April 11, 1926) was an American botanist, horticulturist and pioneer in agricultural science.
He developed more than 800 strains and varieties of plants over his 55-year career. Burbank's varied creations inc ...
and the nursery industry. This piece of legislation made it possible to
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...
new varieties of plants, excluding sexual and
tuber
Tubers are a type of enlarged structure used as storage organs for nutrients in some plants. They are used for the plant's perennation (survival of the winter or dry months), to provide energy and nutrients for regrowth during the next growing ...
-propagated plants (''see''
Plant Variety Protection Act of 1970
The Plant Variety Protection Act of 1970 (PVPA), 7 U.S.C. §§ 2321-2582, is an intellectual property statute in the United States. The PVPA gives breeders up to 25 years of exclusive control over new, distinct, uniform, and stable sexually repro ...
). Plant patents, such a
PP12 'PLUM'(April 5, 1932), were issued to Burbank posthumously. In supporting the legislation,
Thomas Edison
Thomas Alva Edison (February 11, 1847October 18, 1931) was an American inventor and businessman. He developed many devices in fields such as electric power generation, mass communication, sound recording, and motion pictures. These inventio ...
testified before
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
in support of the legislation and said,
:''"This
ill ILL may refer to:
* '' I Love Lucy'', a landmark American television sitcom
* Illorsuit Heliport (location identifier: ILL), a heliport in Illorsuit, Greenland
* Institut Laue–Langevin, an internationally financed scientific facility
* Interlibra ...
will, I feel sure, give us many Burbanks."''
During the congressional debates about the Plant Patent Act, some of the key issues were: what kinds of plant qualified as patentable subject matter; what exactly did a breeder have to do in order to qualify as an inventor; and what was the relationship between the act of invention and the act of reproducing the invention. These issues were overcome by adopting a new concept of invention that has been characterized as 'inductive' invention, by arguing that "although the ‘sports’ or spontaneous mutations from which they bred new varieties often occurred naturally, the skill of identifying
the mutation, isolating it, and then reproducing it was a work of invention." Uniquely, the legislation "eliminated the standard industrial patent requirement that the invention be described sufficiently well to enable someone skilled in the art to reproduce it."
The scope of the rights offered by the Plant Patent Act was arguably curtailed by the US Court of Appeals decision in 1995, ''Imazio Nursery Inc. v. Dania Greenhouses'', 36 U.S.P.Q. 2d 1673, which held that "to establish infringement of a plant patent it is necessary to prove that the accused plant is derived from, i.e. a copy of, the actual plant which prompted the filing of the application for plant patent."
Controversy
The legislation did not receive much popular attention until several decades later, during the development of
plant breeders' rights
Plant breeders' rights (PBR), also known as plant variety rights (PVR), are rights granted to the breeder of a new variety of plant that give the breeder exclusive control over the propagating material (including seed, cuttings, divisions, tissue ...
through the
UPOV 1961 treaty and the enactment of the
US Plant Variety Protection Act of 1970, which coincided with broader critiques of intellectual property and its relationship to human health, food security, and the environment. The criticism became more intense when the Plant Patent Act was cited to support patent protection for
genetically modified organisms (GMOs) in US Supreme Court cases like ''
Diamond v. Chakrabarty
''Diamond v. Chakrabarty'', 447 U.S. 303 (1980), was a United States Supreme Court case dealing with whether living organisms can be patented. Writing for a five-justice majority, Chief Justice Warren E. Burger held that human-made bacteria could ...
'' and
''J.E.M. Ag Supply v. Pioneer Hi-Bred''. Many activists and scholars have suggested that there is a connection between plant patent protection and the
loss of biodiversity
Biodiversity loss includes the worldwide extinction of different species, as well as the local reduction or loss of species in a certain habitat, resulting in a loss of biological diversity. The latter phenomenon can be temporary or permanent, de ...
, although such claims are contested.
Recent Trends
Although the US Department of Agriculture announced that it would accept applications for plant variety protection for industrial hemp (''
Cannabis sativa
''Cannabis sativa'' is an annual Herbaceous plant, herbaceous flowering plant indigenous to East Asia, Eastern Asia, but now of cosmopolitan distribution due to widespread cultivation. It has been cultivated throughout recorded history, used as ...
'') after 24 April 2019, none have been granted to date, and breeders have instead sought intellectual property protection through the Plant Patent Act of 1930, such a
PP31918''Cannabis'' plant named
‘RAINBOW GUMMEEZ’ (June 30, 2020).
References
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