Patents, protections, and privileges the establishment of intellectual property in animals and plants

ISIS

Volumn 98, Issue 2, 2007, Pages 323-331

  Kevles, Daniel J ^a  

^a YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 35348839821     PISSN: 00211753     EISSN: 15456994     Source Type: Journal    
DOI: 10.1086/518192     Document Type: Article

References (49)

1. Diamond v. Chakrabarty, 447 U.S. 303, 100 S.Ct. (1980), 2207. For the full story of the case see Daniel J. Kevles, "Ananda Chakrabarty Wins a Patent," Historical Studies in the Physical and Biological Sciences, 1994, 25:111-136;
2. and Rebecca S. Eisenberg, "The Story of Diamond v. Chakrabarty: Technological Change and the Subject Matter Boundaries of the Patent System," in Intellectual Property Stories, ed. J. C. Ginsburg and R. C. Dreyfuss (New York: Foundation, 2006), pp. 327-357.
3. 35 U.S.C. §101; Bruce W. Bugbee, Genesis of American Patent and Copyright law (Washington, D.C.: Public Affairs Press, 1967), p. 152;
4. and Fritz Machlup, "Patents," International Encyclopedia of the Social Sciences, ed. David L. Sills (New York: Macmillan, 1968), Vol. 11, pp. 461-464.
5. Glen Bugos and Daniel J. Kevles, "Plants as Intellectual Property: American Law, Policy, and Practice in World Context," Osiris, 2nd Ser., 1992, 7:119-148;
6. and Kevles, "Of Mice and Money: The Story of the World's First Animal Patent," Daedalus, Spring 2002, 737:78-88.
7. The monopoly part of the bargain is to provide incentive for the inventor, and the publication part is to promote further innovation by others. See the introductory overview of patent law in Arthur R. Miller and Michael H. Davis, Intellectual Property: Patents, Trademarks, and Copyrights in a Nutshell, 2nd ed. (St. Paul, Minn.: West, 1990), pp. 4-18.
8. The briefs amicus curiae in the Chakrabarty case reveal these interests. See Brief Amicus Curiae of the Regents of the University of California, Jan. 1980;
9. Brief of Dr. Leroy Hood, Dr. Thomas Maniatis, Dr. David S. Eisenberg, the American Society of Biological Chemists, the Association of American Medical Colleges, the California Institute, of Technology, the American Council on Education as Amicus Curiae, 28 Jan. 1980;
10. and Brief on Behalf of Genentech, Inc., Amicus Curiae, Jan. 1980. The amicus briefs are with Diamond v. Chakrabarty, U.S. Supreme Court, Docket No. 79-136, 447 U.S. 303, Jan. 1980.
11. The judge in the 1845 case, upholding the broad patent of an inventor of cotton-spinning machinery, declared : "Only... in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man's own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears." Quoted in Catherine Fisk, "The History of Intellectual Property Comes of Age," Keynote Address, Wisconsin Legal History Symposium, University of Wisconsin Law School, 13 Nov. 2004, p. 6 (unpublished MS, copy in author's possession). In the nineteenth century only one utility patent was issued on a living organism in the United States-a type of yeast that Louis Pasteur claimed as an "article of manufacture"-but that was the exception that proved the rule. Pasteur's patent, no. 141,072, was issued in 1873. See Graham Dutfield, Intellectual Property Rights and the life Science. Industries: A Twentieth-Century History (London: Ashgate, 2003), p. 151.
12. The locus classicus for information on the biological beliefs and practices of plant and animal breeders in the later nineteenth century is, of course, Charles Darwin, Variation in Plants and Animals under Domestication, 2 vols. (London: John Murray, 1868), available at The Writings of Charles Darwin on the Web, http:// pages.britishlibrary.net/ charles.darwin/texts/variation/variatio.n_fm1.html (accessed 29 Jan. 2006).
13. Cary Fowler, "The Plant Patent Act of 1930: A Sociological History of Its Creation," Journal of the Patent and Trademark Office Society, 2000, 82:621-644, on pp. 622-623;
14. Jack R. Kloppenburg, Jr., First the Seed: The Political Economy of Plant Biotechnology, 2nd ed. (Madison: Univ. Wisconsin Press, 2004), pp. 50-57;
15. and Margaret Derry, Bred for Perfection: Shorthorn Cattle, Collies, and Arabian Horses since 1800 (Baltimore: Johns Hopkins Univ. Press, 2003).
16. Fowler, "Plant Patent Act of 1930," pp. 623-624.
17. On Bakewell see Harriet Ritvo, "Possessing Mother Nature: Genetic Capital in Eighteenth-Century Britain," in Early Modem Conceptions of Property, ed. John Brewer and Susan Staves (London/New York: Routledge, 1995), pp. 413-426.
18. See also H. Cecil Pawson, Robert Bakewell: Pioneer Livestock Breeder (London: Crosby Lockwoon, 1957).
19. Derry, Bred for Perfection (cit. n. 8), pp. 15, 20-29, 34-36.
20. For a more extensive discussion of the history of IP in animal breeding see Daniel J. Kevles, "Breeding, Biotechnology, and Agriculture: The Establishment and Protection of Intellectual Property in Animals since the Late Eighteenth Century," in History and Epistemology of Molecular Biology and Beyond: Problems and Perspectives (Preprint 310) (Berlin: Max-Planck-Institut für Wissenschaftsgeschichte, 2006), pp. 69-80.
21. On the extension, of the system for the protection of IP to other animals see Derry, Bred for Perfection. In 1891 Liberty Hyde Bailey, the prominent plant scientist and a professor at Cornell University, noted the value of the system: "There is no law to compel one to register an animal, but every breeder knows that it is only through registration that he can advertise, sell and protect blooded stock. And there is no intelligent purchaser who would think of negotiating for such stock without having obtained the testimony of the herd-book." Liberty Hyde Bailey, "Protection to the Originator of Varieties," report read at the meeting of the American Association of Nurserymen, 4 June 1891,
22. printed in Transactions of the American Association [of Nurserymen], 3-13 June 1891, pp. 88-91.
23. J. M. Thorburn & Company, of New York, warned buyers that they gave "no warranty, express or implied, as to description, quality, productiveness, or any other matter of any seeds, bulbs or plants they send out." Among the reasons was "the well-known tendency of many vegetables to revert to their original types, notwithstanding the care of the seed-grower": J. M. Thorburn & Co. catalogue [1908], copy in New York Botanical Gardens Archives, Catalogue Collection, Box 538.
24. Fowler, "Plant Patent Act of 1930" (cit. n. 8), pp. 622-623;
25. and Kloppenburg, First the Seed (cit. n. 8), pp. 61-65.
26. Bailey, "Protection to the Originator of Varieties" (cit. n. 12), pp. 88-89.
27. For a pioneering scholarly account of horticulture in nineteenm-century America see Philip J. Pauly, Fruits and Plains: The Horticultural Transformation of America (Cambridge, Mass.: Harvard Univ. Press, forthcoming).
28. Dickson Terry, The Stark Story: Stark Nurseries ' 150th Anniversary (Columbus: Missouri Historical Society, 1966), pp. 38-40.
29. New Creations in Fruits and Flowers, June 1893 [catalogue] (Santa Rosa, Calif.: Burbank's Experimental Grounds, 1893), p. 12;
30. and Twentieth Century Fruits, 1911-1912 [catalogue] (Santa Rosa, Calif.: Burbank's Experiment Farms, 1911), p. 1: copies in Luther Burbank Papers, Library of Congress, Washington, D.C., Box 14. The boldface type is in the original.
31. Burbank fulminated to the readers of Green's Fruit Grower that he had "been robbed and swindled out of my best work by name thieves, plant thieves and in various ways too well known to the originator. ... A plant which has cost thousands of dollars in coin and years of intensest [sic] labor and care and which is of priceless value to humanity may now be stolen with perfect impunity by any sneaking rascal. . . . Many times have I named a new fruit or flower and before a stock could be produced some horticultural pirate had either appropriated the name, using it on some old, well-known or inferior variety or stealing die plant and introducing it as their own, or offering a big stock as soon as the originator commences to advertise the new variety." Luther Burbank to Jacob Moore, 4 May 1898, published in Green's Fruit Grower, June 1898, clipping in Luther Burbank Papers, Luther Burbank Home and Gardens, Archives, Santa Rosa, California, Scrapbooks, Vol. 2, p. 45. See also Moore to Chas. A. Green, 20 Apr. 1898; "Protection for Fruit Evolvers" [editorial], California Fruit Grower, n.d.;
32. and Moore to Peter Gideon, n.d., Green's Fruit Grower: Luther Burbank Papers, Luther Burbank Home and Gardens, Archives, Scrapbooks, Vol. 2, pp. 44, 47, 115.
33. See, e.g., the cover of the Stark Nurseries Fruit Book, 1895, depicting the Gold Plum with, the caption "Trade Mark Pat'd 1895," in Luther Burbank Papers, Luther Burbank Home and Gardens, Archives, Scrapbooks, Vol. 1, p. 141.
34. "Protection for Fruit Evolvers" [editorial], California Fruit Grower, quoted in Luther Burbank, Burbank's Experiment Farms, The 1899 Supplement to New Creations in Fruits and Flowers [catalogue], Luther Burbank Papers, Library of Congress, Box 14.
35. Ex Parte Latimer, 12 Mar. 1889, CD., 46 O.G. 1638, U.S. Patent Office, Decisions of the Commissioner of Patents and of the United States Courts in Patent Cases ... 1889 (Washington, D.C.: Government Printing Office, 1890), pp. 123-127.
36. See also H. Thome, "Relation of Patent Law to Natural Products," Journal of the Patent Office Society, 1923, 6:23-28.
37. In a report to the American Association of Nurserymen in 1891, Bailey had observed that patents on new horticultural varieties were unwarranted because most were not inventions but accidental volunteers found in. the fields: Bailey, "Protection to the Originator of Varieties" (cit. n. 12), pp. 88-89.
38. Hoyt et al. v.J. T. Lovett Co., Circuit Court of Appeals, Third Circuit, 71 F.173, 3 Dec. 1895.
39. U.S. Congress, House of Representatives, Committee on Patents, Arguments before the Committee . . . on H.R. 113570, Authorizing the Registration of the Names of Horticultural Products and to Protect the Same, March 28, 1906, 59th Cong. (Washington, D.C.: Government Printing Office, 1906), pp. 3-5 (the quotation is from p. 5), 12-13.
40. For nurserymen's views see, e.g., M. Crawford to F. T. F. Johnson, 19 Mar. 1906, ibid., p. 10;
41. for the committee members' and leaders' views see ibid., pp. 4-5, 9.
42. Bailey had suggested in 1891 that nurserymen use such contractual arrangements, and the court in Hoyt et al had noted their acceptability in passing. See Bailey, "Protection to the Originator of Varieties" (cit. n. 12), p. 90;
43. Hoyt et al v. J. T. Lovett Co., 7.1 F.173, 3 Dec. 1895;
44. Fowler, "Plant Patent Act of 1930" (cit. n. 8), pp. 630-642;
45. and Bugos and Kevles, "Plants as Intellectual Property" (cit. n. 3).
46. Quoted in Fowler, "Plant Patent Act of 1930," p. 641.
47. I am indebted to Mario Biagioli for this analogy. On patents as privileges see Miller and Davis, Intellectual Property (cit. n. 4), p. 5;
48. and Jessica He, '"Hail to the Patents!' The Ethics, Politics, and Economics of the Early Modern Patent System in England" (Senior Essay, Program in Ethics, Politics, and Economics, Yale Univ., 2005), pp. 2-27.
49. The European convention is UPOV, "L'union internationale pour la protection des obtentions végétales," or the "International Union for the Protection, of New Plant Varieties." See Bugos and Kevles, "Plants as Intellectual Property" (cit. n. 3).