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82 J. Pat. & Trademark Off. Soc'y 621 (2000)
The Plant Patent Act of 1930: A Sociological History of Its Creation

handle is hein.journals/jpatos82 and id is 635 raw text is: The Plant Patent Act of 1930: A Sociological History of its Creation Cary Fowler, Ph.D. ' INTRODUCTION T he first intellectual property rights law in the United States to cover biological materials explicitly was the Plant Patent Act of 1930.2 This Act provided patent protection for asexually reproduced varieties of domesticated plants (for example, apple, pear, rose, etc.).3 Since that time, patent or patent-like protection has been expanded through legisla- tion and court decisions to include: sexually reproduced plant varieties,4 micro-organisms,5 genes and gene complexes,6 characteristics7 and prod- ucts.8 Trade secrets, contracts, and use of the tort theory of conversion have also been used for the protection of plant germplasm.9 Given the development of scientific plant breeding in the early twentieth century following the rediscovery of Mendel's laws of hered- ity, it might be assumed that the Plant Patent Act (PPA) was the product of certain interests attempting to gain legal control over the plant vari- eties created through employment of Mendel's insights. Indeed, propo- nents of the PPA argued at the time that the Act was warranted because changes in technology had made inventors out of plant breeders. I Cary Fowler is Associate Professor, Norwegian Center for International Environment and Develop- ment Studies, Agricultural University of Norway, Aas, Norway; and Senior Advisor to the Director Gen- eral, International Plant Genetic Resources Institute, Rome, Italy. 2 Townsend-Parnell Plant Patent Act of 23 May 1930, Pub. L. No. 245 (7 1st Congress). 3 These are species which are multiplied asexually for the commercial market, by grafting or other cloning techniques. The Act, however, excludes potato and other such tuber crops. 4 Plant Variety Protection Act of 24 December 1970, 84 Stat. 1542, 7 U.S.C. 2321 et seq., as well as through Ex Parte Hibberd, 227 U.S.PQ. 443 (Bd. Pat. App. & Int. 1985). 5 Diamond, Commr. Pats. v. Chakrabarty, 447 U.S. 303, 308-9 (1980). 6 227 U.S.PQ. 443. 7 The Federal Circuit (lmazio Nursery v. Dania Greenhouses, 69 F.3rd 1560, 36 USPQ2d 1672 (Fed. Cir. 1995)) limited the rights of holders of plant patents under the 1930 law to excluding only those who have derived their material directly from the patent holder's stock. Independent creation is thus an ample defense in an infringement action. Breeders fashioning a new variety with a unique trait-in this case a heather variety which bloomed in different months than other varieties-must now seek protection under utility patent statutes for such a characteristic. See Kjeldgaard and Marsh, Recent United States Devel- opments in Plant Patents, Molecular Breeding Vol. 2 (1996). 8 227 U.S.PQ. 443. 9 Ihnen and Jondle, Protecting Plant Germplasm: Alternatives to Patent and Plant Variety Protection, Intellectual Property Rights Associated with Plants (American Society of Agronomy 1989).

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