On Tuesday 14th April, an eclectic mix of historians, lawyers and scientists gathered at the John Innes Centre (a leading research organisation in genetics and plant science) under the auspices of the University of Leed’s “Cultivating Innovation” project (http://www.cultivatinginnovation.org/). Giving a historical overview on the question of who can actually own plant was keynote speaker Professor Daniel Kevles from Yale University:
From Public to Private Goods: The Evolution of Plant Properties in the American Political Economy
By his own admission, Professor Kevles begin with an improbable point for a history of plants and intellectual property. In 1751 polymath Benjamin Franklin oversaw the publication of Medicina Britannica in the American colonies. Authored by British physician Thomas Short, Medicina was one of many texts which displayed plants and their medical properties. So why did Franklin involve himself in its publication?
Medical knowledge of plants had long been confined to experts. Compendiums of knowledge appeared in Latin, often containing cryptic alchemical or astrological connotations. The British Patent Office issued patents on plant-based medicines, yet this process did not help ease secrecy surrounding their ingredients. As an Enlightenment man, Short railed against this, declaring that his book was not for the learned gentlemen. He announced that his text omitted traditional superstitions attached to plants. Short also excluded chemical preparations. In his worldview, pure, unrefined plants were the principle gifts of divine providence.
Franklin was smitten by Short’s sceptical empiricism. Intrigued by medicine and agriculture, Franklin became a plant devotee, envisioning fields of soy flourishing in the colonies and sending back specimens from his trips abroad. Both Franklin and Short believed in an idealised “natural commons.” Natural resources were free and provided for all.
Thomas Jefferson opposed patents for this very reason, but gave way to James Madison on the issue, resulting in the Patent Act of 1793. Yet Jefferson’s requirement of novelty in patentable goods maintained the natural commons. Plants were public resources for medicine and agricultural purposes. Crop improvement drew attention from lawyers, naturalists and agriculturalists, who attempted to place the new “United States” on a sound economic footing. These men enlarged and diversified American fauna and flora, founding opulent estates and botanic gardens. In 1819, the Federal government joined their cause, enlisting naval and consular officers to acquire exotic plants and seeds.
Seeds and cuttings could be easily saved by growers, minimising the need to purchase seed. Problems of identity or quality also discouraged buying from seed houses or nurseries. Yet these institutions did provide new varieties, including those from abroad. One example was David Landreth’s seed house, which ran its first advertisement in 1784. Landreth’s developing brand identification through the nineteenth century was held up by Professor Kelves as an instance of defense of intellectual property.
In 1881 Federal government passed trademark legislation, which the Landreth Company seized upon to trademark its liberty bell logo. Seed was now sold in marked bags and packets, carrying threats that any infringements would be prosecuted. “Beware of deception” warned their 1887 catalogue. In the same year, Landreth successfully sued a seed grower in Wisconsin in 1887 for selling his seeds under their name. In 1893 Stark Brothers nurserymen trademarked a “Delicious” apple. Stark had to ask buyers to sign a contract upon purchase of its new “Golden Delicious” seedlings, offering rewards for those who broke its contract and going so far as to employ Pinkerton agents.
In 1930 Congress passed the Plant Patent Act, in no small part due to Stark’s lobbying. At the opening of the twenty-first century, there are still continuities from Franklin’s day. But now plants have been broken down into their chemical components, thwarting Short’s vision. A new regime of privatisation has emerged.