PROTECTION TO THE ORIGINATOR OF VARIETIES. 



ONTROL of new varieties by 

 the originator has been a pro- 

 lific source of discussion 

 for a few years. Inven- 

 tors are protected by pat- 

 ents and authors by copy- 

 rights ; should not origin- 

 ators of varieties of plants 

 b e similarly protected ? 

 The question seems, at 

 first to admit of but an affirmative answer. But there 

 are differences between plants and books or tools. 



The earlier movement designed to protect the 

 originator was in the direction of a patent for new 

 varieties. This movement looked upon varieties as 

 inventions, and for this reason possesses elements 

 of fatal weakness. It is a fact that nearly all new 

 varieties are mere accidents to the "originator," 

 who either picks them up in a chance fence-row or 

 finds them among a miscellaneous batch of seed- 

 lings. The "originator" is usually a mere "finder,'' 

 and he may as well claim a patent for the invention 

 of a white raspberry or double hepatica which he 

 may find in the woods, as upon a new peach found 

 in his hedge-row. When the time comes that men 

 breed plants upon definite laws, and produce new 

 and valuable kinds with the certainty and forethought 

 with which the inventor constructs a new machine, 

 or an author writes a book, plant patents may pos- 

 sibly become practicable. 



It is true, however, that the original proprietor of 

 a new variety should be in some manner protected. 

 One of the most important steps yet taken in this 

 direction is the proposition to devise a national reg- 

 ister of plants. This scheme originated with A. L. 

 Bancroft, of San Francisco, and it has been adopted 

 and advertised, together with a plan of propagation 

 rights, by a joint committee of the California Horti- 

 cultural and Floral societies. Essentially the same 

 idea has been put into form by the present writer, 

 and lists have been published which may " serve the 

 purpose of the certificates issued for new varieties by 

 the Royal Horticultural Society in England, and by 

 similar organizations in other countries." Mr, Ban- 

 croft's plan of registration appears to be too heavy 

 and cumbersome ; and the same may be said of the 

 proposed federal law to secure a propagation right 

 to the originator or introducer. 



The proposed legislation to protect plantsmen 

 and growers possesses the fault of all attempts 

 yet made to secure protection for the originator 

 — the absolute impossibility of determining what 

 a variety is and if it is entitled to be styled a 

 novelty. There are hundreds of varieties now upon 

 the market upon which no body of judges, even if 

 expert horticulturists, could agree as to their dis- 

 tinctness from older sorts. A character which is 

 regarded as worthy varietal recognition by one man 

 is disregarded by another. In one soil, or under 

 one treatment, a plant may be very different from 

 one of the same stock grown under other conditions. 

 Some contend that, among fruits, a seedling is al- 

 ways a distinct variety, no matter if its characters 

 are identical with those of an older sort. This 

 opinion is vehemently maintained by one of the 

 earlier agitators for plant patents. But even if 

 this position is correct, there are hundreds of in- 

 stances in which the origin is wholly unknown, and 

 which cannot, therefore, be brought as testimony. 

 In fact, there are scarcely any two horticulturists 

 who hold the same views regarding the limitations 

 of \'arieties : and it is a fact that the limits con- 

 stantly become more obscure the longer one studies 

 varieties, a fact which the horticulturists of the 

 experiment stations are rapidly learning. If this 

 is true of men in the business, what can we expect 

 of others who might be called to judge if varieties 

 are infringeoients ? It is extremely doubtful if 

 Congress could ever be persuaded to pass such a 

 law. To this objection some have replied that 

 there is also great difficulty in determining merits 

 of new machines, but the patent law is not invali- 

 dated for that fact. But this statement does not 

 satisfy the question. A machine is the same in 

 Maine and California, while a variety may be differ- 

 ent on adjacent farms. 



It is possible, it seems to me, to secure protec- 

 tion under existing laws if the registration of varie- 

 ties is once secured. Trade-marks, trade-names, 

 and brands are now protected. The name of a 

 variety, once used in trade or admitted in a national 

 register, becomes a trade-mark, with inviolable 

 rights. This name could not be used to designate 

 other varieties, and so long as the variety could 

 not be admitted to the register under any other 

 name, the (jriginator would be tolerably secure. 



