Plant Patent Act of 1930

The Plant Patent Act of 1930 (enacted on 1930-06-17 as Title III of the Smoot–Hawley Tariff, ch. 497, 46 Stat. 703, codified as 35 U.S.C. Ch. 15) is a United States federal law spurred by the work of Luther Burbank and the nursery industry. This piece of legislation made it possible to patent new varieties of plants, excluding sexual and tuber-propagated plants (see Plant Variety Protection Act of 1970). Plant patents, such as PP12 'PLUM' (April 5, 1932), were issued to Burbank posthumously. In supporting the legislation, Thomas Edison testified before Congress in support of the legislation and said,

"This [bill] 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.[1] 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."[2]

Uniquely, the Plant Patent Act "eliminated the standard industrial patent requirement that the invention be described sufficiently well to enable someone skilled in the art to reproduce it."[3] The need for this new type of patents (plant patents) arises from the written description requirement of utility patents. Whereas human-made machines (and their inventive parts) can be described precisely, similarly accurate description is not possible for living things: even if a complete DNA sequence in every chromosome is known, it is not possible with the modern technology to establish the limits of the DNA variation with the accuracy required for composition-of-matter claims.[4]

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."[5] In other words, the power of Utility Patents to block a similar invention, that was made independently from the patent owner, does not apply to Plant Patents.

Controversy

The legislation did not receive much popular attention until several decades later, during the development of plant breeders' rights 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.[6] 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 and J.E.M. Ag Supply v. Pioneer Hi-Bred.[7] Many activists and scholars have suggested that there is a connection between plant patent protection and the loss of biodiversity,[8] although such claims are contested.[9]

Although the US Department of Agriculture announced that it would accept applications for plant variety protection for industrial hemp (Cannabis sativa) after 24 April 2019,[10] none have been granted to date, and breeders have instead sought intellectual property protection through the Plant Patent Act of 1930, such as PP31918 Cannabis plant named ‘RAINBOW GUMMEEZ’ (June 30, 2020).[11]

References
  1. Pottage, Alain; Sherman, Brad (2007). "Organisms and Manufactures: On the History of Plant Inventions". Melbourne University Law Review. 31 (2): 539–568.
  2. Pottage, Alain; Sherman, Brad (2010). Figures of Invention: A History of Modern Patent Law. Oxford University Press. p. 61. ISBN 9780199595631.
  3. Fowler, Cary (2000). "The Plant Patent Act of 1930: A Sociological History of Its Creation". Journal of the Patent and Trademark Office Society. 82: 621–644.
  4. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1202&context=book_chapters
  5. Gioia, Vincent G. (1997). "Plant Patents - RIP". Journal of the Patent and Trademark Office Society. 79: 516–528.
  6. Halbert, Debora J. (2005). Resisting Intellectual Property. Routledge. p. 87-163. ISBN 9780415429641.
  7. Bosse, Jocelyn; Chacko, Xan; Chapman, Susannah (2020). "The cosmopolitics of food futures: imagining nature, law, and apocalypse". Continuum: Journal of Media & Cultural Studies. 34 (6): 840–857. doi:10.1080/10304312.2020.1842124. S2CID 229485228.
  8. Mooney, Pay Roy (1979). Seeds of the Earth: A private or public resource?. Inter Pares for the Canadian Council for International Co-operation and the International Coalition for Development Action. p. 71. ISBN 0969014937.
  9. Heald, Paul J.; Chapman, Susannah (2012). "Veggie Tales: Pernicious Myths about Patents, Innovation, and Crop Diversity in the Twentieth Century". University of Illinois Law Review: 1051–1102.
  10. "USDA Now Accepting Applications of Seed-Propagated Hemp for Plant Variety Protection". US Department of Agriculture. April 24, 2019.
  11. Bosse, Jocelyn (2020). "Before the High Court: the legal systematics of Cannabis". Griffith Law Review. 29 (2): 302–329. doi:10.1080/10383441.2020.1804671. S2CID 229457146.
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