Col. Lawrence C. Kingland, of St. Louis, a former Commissioner of Patents, and himself a farmer on a modest scale, wrote a letter to a member of this committee on June 12 of 1959, sending me a copy of his letter, in which he said, and I want to read two short paragraphs of it:

During my term as Commissioner of Patents, I was called upon to make several talks before groups interested in plant patents, and at that time reviewed the background for the section of the Patent Act covering this subject. Even then I was unable to find any reason for the exclusion of tuber-propagated plants. It seems to me there is no logic whatever in making distinction between plants within the protection and tuber-propagated plants without the protection.

I feel that the inequity that has resulted to plant developers under the present law should be promptly corrected, and I look forward to Congress passing the amendment to the act without undue delay.

The present Commissioner of Patents closes his letter to Senator O'Mahoney as follows:

The Patent Office can offer no valid objection to the proposal.

Now, in the Senate committee report of 1930, this statement is found:

The term "tuber" is used in its narrow, horticultural sense as meaning a short, thickened portion of an underground branch. It does not cover, for instance, bulbs, corms, stolons, and rhizomes. Substantially the only plants covered by the term "tuber propagated" would be the Irish potato, and the Jerusalem artichoke. This exception is made because this group alone, among asexually reproduced plants is propagated by the same part of the plant that is sold as food.

Now, I highly respect this Senate committee report of 1930, but there are two errors in the statement that was just made. The first one is that there are several important tuber-propagated plants in addition to the Jerusalem artichoke and the Irish potato; namely, the taro, cultivated in Southern States and sold in the markets as dasheen. Senator HART. What is that?

Mr. HOBBS. Taro. The caladium, the canna, the tuber rose, and several members of the huge lily family.

The second error is that under the act as it exists, a patent may issue on a sweet-potato plant, which is not a tuber, and on an onion plant, which also is not a tuber, but a bulb.

Each of these plants reproduces by the same part of the plant that is sold as food, so the statement that the exception is made because the plants that are excepted are the ones that reproduce by the part sold as food does not follow through.

In his letter to this committee, Commissioner of Patents Watson called attention to the fact that patents are granted on foods and medicines. Illustrative of patents on food products are patented shortenings, frozen confections, breakfast foods, certain breads; on pharmaceuticals there are patents now on penicillin and many vitamin products, and in the past there was the famous patent on aspirin, declared valid by the courts.

Literally hundreds of plant patents have issued on food-bearing plants. Strawberries, peaches, plums, oranges, pecans, grapefruitalmost any fruit that one can name.

Let me give you just one illustration of how this Plant Patent Act works. In Wisconsin, it is cold by Armistice Day. Vegetables have been cropped, the grain harvested, deciduous trees have shed their leaves, and yet on Armistice Day in Madison at a convention there were exhibited freshly grown and freshly picked strawberries grown

by A. E. Lang, of Dodgeville. Every other variety of strawberry in that area was dead or dormant at that time.

Mr. Lang secured Plant Patent No. 1745 in 1958 on his new frostresistant variety. It is unusual in Wisconsin to have fresh local grown strawberries in November.

Now, strawberries are important. How much more important it would be if under the incentive of reward and protection a disease-free potato were discovered, or a double-yield potato, or a potato that will mature in half the time.

The observation that literally hundreds of patents have issued on fruit or nut-bearing plants should be coupled with the statement of the Department of Agriculture, and I quote from its letter of March 12 to this committee:

There is no evidence that the patenting of plants has increased the cost of food to the consumer.

One of the points made in the Senate committee report on the plant Patent Act of 1930 was that plant breeding and research have largely been dependent on the Government. It has been particularly so with the potato, and the Department of Agriculture has done a remarkable job, but it hasn't yet, and I don't think it claims to have come up with the perfect potato.

Under proper incentive, and at his own expense and not the taxpayers', one of the several potato breeders in this country may well do just that.

Several persons have inquired of me and of others how a patent on a new potato plant could be protected. The Department of Agriculture has raised that question in respect to the proposed amendment. Obviously this isn't the concern of Congress. No agency of the Government has any right, interest, or obligation to protect a patent once it has been granted by the Commissioner. The problem is solely that of the patent owner, whether the patent be on the machine, composition of matter, or any new plant.

The question has also been asked how one variety of potato may be distinguished from another. The Department of Agriculture is credited with the development of some 70 new varieties of the potato since the first Plant Patent Act in 1930. These varieties obviously were identifiable by the Department of Agriculture.

Under the law, the Department of Agriculture is obligated to advise the Commissioner of Patents as to whether a plant upon which a patent is sought is new and distinct as required by the statute.

This obligation would continue if the proposed amendment were adopted, and the bill makes no change in this regard.

If a potato, upon which a patent is sought, is sufficiently new and distinct to warrant the granting of a patent, such new variety can be identified because of its new and distinct characteristics, and such new variety could be followed into the hands of the infringer.

Anyone can tell the rose of Plant Patent No. 1. It is the only ever-blooming, climbing rose.

Even an untrained person can spot the strawberry of the Parish patent, for it is the only strawberry without a hollow core, or a white center. It is crimson all the way through.

The question has also been asked how will a patent on a potato plant work. The patentee himself will raise or license others to raise

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certified seed potatoes, and nurseries or seed houses will sell them. The potatoes that are used commercially, I understand, for planting are certified seed, and that is the way the thing would operate, he who gets a patent on a potato will license others or himself to raise the certified seed which nursery houses would sell.

The Senate committee report of the Plant Patent Act of 1930 gave at least seven reasons why that bill was in the public benefit. Each one of these reasons is applicable to the proposed amendment to include the tuber-propagated plant among those patentable.

In conclusion, permit me to summarize those reasons in seven short

sentences.

While the language in the committee report was general, and applied to all plants that were patentable, just by the mere substitution of the word "tuber" for "plant," those reasons that applied in 1930 are exactly applicable now.

1. The plant breeder has no adequate financial incentive. A new variety, once it has left his hands, may be reproduced unlimitedly by all.

2. Plant breeding and research is dependent on the Government in large measure.

3. New varieties will be made promptly available for there will be no reason to withhold them.

4. Plant development by private funds will be stimulated.

5. The food and forest supply of the Nation is becoming dependent on new varieties, citing the peach disease which threatened Georgia, and the white-pine blister as illustrating the need for disease-resistant varieties.

6. Plant breeding is fundamentally connected with the Nation's food supply.

7. Plant patents mean better agricultural products that will give the public more actual value for its dollar.

Now, other witnesses which will follow me will advise the committee about the uses of the potato, and the need for getting a getter and possibly perfect potato.

Senator HART. Thank you very much, Mr. Hobbs.

May I ask one question?

Mr. HOBBS. Yes, sir.

Senator HAPT. You have emphasized that the potato would be the food product which we in your judgment could anticipate expanding research and development on if the bill was adopted, and you mentioned artichokes, too.

Is there any other food product which would become patentable under this bill?

Mr. HOBBS. I am not a horticulturalist, but I knowSenator HART. I am not a horticulturalist or a patent lawyer, so be very patient with me.

Now,

I

Mr. HOBBS. The taro which I mentioned is another one. am new to the State of Florida, but that was one of the first things I became acquainted with. It is sold on the market as dasheen. You buy the sprouts, which are like asparagus, and you eat those. You can buy the tuber, itself, which is a starchy thing like a potato, and it is raised quite commonly in the Southern States and sold on the market.

Now, in my limited knowledge, the potato-and I mean the Irish potato, because the sweet potato would be patentable under the act-the Irish potato, the Jerusalem artichoke, and the taro.

Now, some of the scientific experts can expand on what I said in that regard.

Senator HART. Happily the committee has skills in patent lawyers and horticulturalists.

Mr. GREEN. Mr. Hobbs, do you suppose the fact of patenting potatoes would in anyway increase the cost to consumers of those particular goods?

Mr. HOBBS. Well, I have my own opinion on that, which I will state first, that if we get a better potato, more yield, more disease resistant, the greater yield, and the less hazard are going to make more potatoes available. That is my own speculation and judgment based on experience.

But then I come back in my second answer to your question, the statement in a letter to this committee from the Department of Agriculture.

There is no evidence that the patenting of plants has increased the cost of food to the consumer.

Mr. GREEN. How many varieties of potatoes are being produced and marketed at the present time?

Mr. HOBBS. I would much prefer if you asked that question of someone who knows potatoes much better than I do. I know four or five varieties of potatoes, and that is all. I read in the seed catalogs about the Katahdin, Chippewa, Pontiac, the Idaho, and new improved Chippewa, but I can't begin to enumerate all of them.

Mr. GREEN. You know of no reason presently, so far as your own experience is concerned, or your own study, as to why the potato or tuber was excluded from the original Plant Act?

Mr. HOBBS. The only answer that I have ever been able to discover was what was made in the Senate committee report in 1930, that the Jerusalem artichoke and the Irish potato were substantially the only tubers that would be affected, and they reproduced by the same part of the plant that was sold as food.

Now, when you get a plant patent, you do not get a patent on the potato, the tuber, itself, or on the leaf or any other part. Your patent is on the whole plant as an entity. I think the Commissioner of Patents, who is here, will say I am right in that regard.

Mr. GREEN. Did I understand you to say that the sweet potato, properly, may be patented?

Mr. HOBBS. The sweet potato, I am told, and have read in several books and the Department of Agriculture so advised this committee, is not a tuber, but a fleshy root, and therefore not coming within the exception of tuber-propagated plants. The sweet potato can be patented, as could an onion, and each of those is reproduced by the same part that is sold as food.

Mr. GREEN. Do you have any questions?

Mr. WRIGHT. The only question I have would probably be answered by the Patent Office. I was wondering if any patents had actually been issued on sweet potatoes?

Mr. HOBBS. I made an investigation early this year, and I do not believe that there are any patents issued on the sweet potato, or on an

onion, and, of course, I can't say, and I don't suppose the Commissioner would feel authorized to say whether there are any applications pending on those plants because the communication to the Patent Office soliciting a patent is a confidential matter.

Senator HART. Thank you very much, Mr. Hobbs.

Mr. GREEN. Mr. Frederick J. Meyer.

Mr. HOBBS. Might we have one of the other witnesses come first, Mr. Mercker, please, to be followed by Mr. Picha, and lastly, Mr. Meyer?

Mr. GREEN. You want Mr. Meyer to be the last witness, Mr. Hobbs?

Mr. HOBBS. Yes, sir.

(The complete statement of Mr. Hobbs is as follows:)

STATEMENT OF M. K. HOBBS

Mr. Chairman and members of committee, my name is M. K. Hobbs.

I reside in Winter Park, Fla.

Presently

I am in semiretirement after the practice of patent and kindred law in Chicago and in Wisconsin for 35 years.

Subsequent to the enactment of the Plant Patent Act of 1930, I have represented several individual plant breeders in the Midwest, and one of the largest wholesale nurseries in the country. I mention this, not to claim any special qualifications, but rather to indicate a wholesome interest over the years in plant patents. I have prepared the specifications for several plant patents.

In a brief which was submitted to this committee, I summarized faithfully the legislative history of the Plant Patent Act. I have a copy of that brief for each member of the committee if he would care to have it for his personal use. Since that brief is part of the official file, it will much shorten the comments that otherwise I would have felt it expedient to make.

The Secretary of Agriculture in 1930 reported in answer to an official inquiry that the proposed Plant Patent Act "* ** would appear to be desirable and to lend far-reaching encouragement to agriculture and benefit to the general public”. The Senate committee report on the Plant Patent Act stated:

"The purpose of the bill is to afford agriculture, so far as practicable, the same opportunity to participate in the benefits of the patent system as has been given industry, and thus assist in placing agriculture on a basis of economic equality with industry."

It is of interest that on the Senate floor in April of 1930, Senator Copeland related the efforts of the Stark Nursery to protect its new Delicious apple. It was sold under bond that no purchaser of a Delicious tree would sell or give away any cutting thereof. There was no other way to protect this new tree from horticultural pirates.

In the House it was said by Mr. Cannon in support of the Plant Patent Act of 1930 that there is no greater benefactor to the human race than the man who produces a new fruit or vegetable.

This brings us to the specific purpose of the amendment proposed by S. 1447. The statutes permit the granting of plant patents for new and distinct varieties of asexually reproduced plants, except tuber-propagated plants. By this exception, the act failed to accomplish its complete objective; namely, in the words of the Senate committee report, "to remove discrimination between plant developers and industrial inventors."

Very shortly after the passage of the act, members of the bar, and plant breeders asked, why the exception? No one had a satisfactory answer. Robert Starr Allyn, of the New York bar, in 1934 wrote:

Just why tuber-propagated plants have been barred we have not been able to understand."

Col. Lawrence C. Kingsland of St. Louis, former Commissioner of Patents, and himself a farmer on a modest scale, wrote to a member of the committee on June 12, 1959, sending me a copy of his letter, in which he said:

"During my term as Commissioner of Patents, I was called upon to make several talks before groups interested in plant patents, and at that time reviewed the background for the section of the Patent Act covering this subject. Even then I was unable to find any reason for the exclusion of tuber-propagated plants.