Why Didn’t an Equivalent to the US Plant Patent Act of 1930 Emerge in Britain? Historicizing the Boundaries of Un-Patentable Innovation

Chapter 6
Why Didn’t an Equivalent to the US Plant Patent Act of 1930 Emerge in Britain? Historicizing the Boundaries of Un-Patentable Innovation

Berris Charnley


In 1906 the Royal Horticultural Society hosted the Third International Conference on Hybridisation and Cross Breeding. The meeting is remembered now as a triumph of the Mendelian school, whose leader, William Bateson, used the occasion to put into public circulation his new name for the discipline: genetics. Less widely remembered is that the meeting also hosted a session bringing together plant breeders to discuss another, related, matter: whether they could use copyright law to protect their IP in the novel varieties that, they reckoned, would surely arise ever more abundantly thanks to the work of the Mendelians. So plant IP was on the minds of plant breeders in Britain from the early years of the twentieth century. And yet over the succeeding decades there would never emerge anything comparable to the US Plant Patent Act of 1930. Why not? This chapter will offer a preliminary answer, emphasizing the extent to which different paths of agricultural development, and experiences of the Great War, shaped the social – political and moral – contexts of plant breeding in each country. Furthermore, in conclusion, the chapter will consider the relevance of this history for contemporary discussions over the boundaries of patentable subject matter.

The US Plant Patent Act of 1930 (PPA) is a well-worn passage point in the history of patenting life.1 Broadly speaking, there are three sets of reasons on the table as to why the PPA came into place when and as it did in the United States. We might call these three sets of causes of the act’s existence geographic, scientific and social.2 Into the first of these categories we can place contemporary arguments for plant patents which hinged on the rapid geographical expansion of American plant breeding: from east to west and back east again.3 Across these widely dispersed and rapidly expanding markets, informal community-based chastisement would, it was feared, hold little sway. Accordingly, breeders like Luther Burbank, on the west coast, argued that they needed protection from variety thieves who could smuggle plants over to east coast markets, and vice versa for the breeders on the east coast.4 A second set of contemporary arguments in favour of the PPA focused on advances in scientific theory, and in particular Mendelism and pure line theory. These new theoretical developments were, some thought, capable of clearing up the problem of how to argue that breeders constructed new varieties, in a similar manner to chemists and engineers who, in the period, were becoming increasingly adept at manipulating molecules and machines. Cary Fowler, an activist turned historian of patenting life, voices most strongly a concern that runs throughout the historiography: did Mendelism actually change plant breeding in this early period? Fowler is at pains to dismiss the view that it did, pointing out that Mendelism had little to do with plant breeding before the 1930s.5 On Fowler’s interpretation of the influence of science, Mendelism and pure line theory had a more subtle didactic and sociological role to play in arguments put forward by the pro-plant patent lobby.6 These theories acted as a scientific fig leaf of respectability around what had previously been thought of as the art of plant breeding. Finally, the people who made these arguments, and the way in which they made them, were important ingredients in the mix of causes that led to the PPA. Paul Stark, of Stark Brothers’ Nurseries, was loud and vociferous in his well-connected campaign to have the PPA enacted, one to which the figures of Luther Burbank and Thomas Edison lent much weight (and in Edison’s case ample opportunity for comparison of breeders to engineers).7 In other words there were strong social factors – relating to coordination and access – behind the instantiation of the PPA.

One way of developing this lively interpretive debate is to ask, if the PPA was enacted in America, why there but not elsewhere? Posing this question, in the first place, throws light on what was happening in Britain. Secondly, it helps in formulating new questions about the American legislation that was enacted and contemporary legislation being considered today. The absence of IP rights in British plants, prior to the introduction of the International Union for the Protection of New Varieties of Plants (UPOV), has received little attention.8 However, this picture is changing; set within a general trend towards focusing on historical patterns of patenting, but in conscious contrast to it, recent work in the history of economics on patent-free innovation has suggested that plant variety innovation occurred rapidly across Europe even though plant patents were unavailable.9 We also know more about the ways in which British plant breeders sought to protect their new varieties when IP rights were unavailable to them.10 This chapter supplements these analyses and develops a new line of enquiry into the history of patenting life by offering an explanation for the absence of plant patents in 1930s Britain. The chapter also has a secondary and more self-conscious aim; to link this type of historical reconstruction with the contemporary debates in which the current humanities turn to innovation and IP studies has been motivated.

Viewed from this angle, Britain is an ideal case study of a country in which plant patents were not enacted. We begin with the views of a group of plant breeders at the Royal Horticultural Society’s Third International Conference on Hybridisation and Cross Breeding. At their session there was mixed enthusiasm for IP rights and even among those who were enthusiastic there was little coherence. The diary of an American breeder touring Britain two years later, in 1908, then gives us a window on to Edwardian British plant breeding. A new part of this scene was publicly funded plant breeding, which, as an aspect of national agricultural revival, was becoming a popular cause. In the next part of the chapter we turn, via the British agricultural experience of the Great War, to postwar public funding of plant breeding. One indicative highpoint of these plans was the mid-1920s release of Yeoman II; the country’s first fully publicly funded wheat variety, distributed by a new National Institute of Agricultural Botany. By the mid-1920s, just as government seed programs were ending and calls for the PPA were gaining ground in America, publically funded plant breeding monopolized the British context, and the plant breeders at commercial firms were quite openly snubbed. In closing, the chapter turns to its secondary aim asking what value might be drawn from reconstructing the particular notions of morality, equity and nation invoked by early twentieth-century plant breeders.

Plant Breeding in Britain before the Great War

‘“Copyright” for the Raisers of Novelties’

The Royal Horticultural Society (RHS) was founded in the 1830s and initially represented the interests of aristocratic gardeners. However, after near bankruptcy in the 1880s, the society was set on a new course by Sir Daniel Morris, a man who had made his reputation administering colonial agriculture in the West Indies. To rescue the society he fostered links with commercial plant breeders and academic botanists.11 By the close of the century the society was a key feature of Edwardian horticultural life. In 1897, William Bateson, in his role as secretary for the Royal Society’s evolution committee, approached the RHS’s members for records of their breeding activities. Bateson wanted to use these records to analyse heredity.12 His efforts had mixed results, a stud book of orchids was produced, with the help of Bateson’s long-term collaborator and RHS insider, Charles Hurst, but many breeders remained silent.13 One wholly positive upshot, however, of Bateson’s developing relationship with the society was a series of international conferences on plant breeding techniques which started in 1899.14 The second conference, hosted by the New York Horticultural Society in 1901, was a key moment for Mendelian aspirations, but it is the third conference, held in London and Cambridge in 1906, that is the most well-known of the three events.15 The proceedings were recorded and published by Reverend W Wilks, the society’s secretary, in the following year, adopting Bateson’s new word, ‘genetics’, for the report’s title.

At the fifth session of the third conference, ‘“Copyright” for the Raisers of Novelties’, British commercial plant breeders (and two foreign academic breeders) came together to discuss the issue of plant breeding IP. Opening the session, Mr George Paul VMH, a commercial rose breeder, held the floor.16 He wanted to coax the society into officially passing a resolution on the desirability of copyright for plant breeders. Paul felt some sort of right was necessary as recompense, ‘for all the risk and labour, added to the observations and experience which have taken the best years of one’s life to amass’.17 Paul noted the absence of many breeders at the conference and suggested this was because, ‘these Gentlemen do not like to tell us or to show, what they have done in their experiments, because when once their knowledge becomes public, they have not the slightest chance of receiving any pecuniary reward for their labours’.18 As a result of this move to secrecy, Paul complained, their ‘invaluable’ knowledge was inaccessible to other breeders, as it had been to Bateson. On Paul’s view, some version of the patent bargain, whereby innovators were rewarded with state protection in exchange for sharing their new innovation with society, would benefit the plant breeding community. Professor Hansen, probably Emil Chr. Hansen, Head of the Department of Physiology at the Danish Carlsberg Laboratory, 1879-1909, summarized the group wisdom that, ‘in law, a seedling is regarded as the gift of God, and it would be hard to patent that’. However, Hansen shared Paul’s desire for ‘some law fashioned … [to] give a bonus to the man who does such skilled and valuable work’.19

Where precision was a problem, this was not considered, by at least one member of the discussion, to be a problem of exact manipulation, or even constancy through generations but rather one of identification in the first place. In the discussion that followed Paul’s remarks, the unnamed chairman of the session noted, ‘surely our discussions to-day show what a very great difficulty there would be in enforcing such law, because we have gentlemen from all parts of the world maintaining that a thing is new, and others, equally capable, maintaining that it is old’.20 As a result of the apparent proliferation of varieties that had occurred in the previous century it was often difficult to tell what was really new. Sometimes this was the result of an innocent taxonomical mistake, as, ‘many raisers may be occupied in cultivating the same class of a plant, and two or three of them might get something very similar, at the same moment’.21 Often though, such confusion was the result of direct piracy of either a varieties’ name, or the variety itself: this was a problem that scientific precision was, apparently, unable to broach.22

There was considerable sympathy for Paul’s suggestion from one German attendee to the session, Professor Wittmack. The professor described how in Germany, ‘we are protected by the laws of our agricultural society, which is a very great society. A man who has bought a specimen of a novelty from the raiser, dare not himself sell it.’ Wittmack continued by wondering that, ‘surely a society like the RHS could do the same, and they should expel a man who did not do as they wished’. However, some of Paul’s fellow British breeders were rather less sure about the possibility or even the benefits of protection, especially to the trade as a whole. Mr James Douglas suggested, ‘It appears to me that protection would cut both ways … Mr Paul propagates other people’s roses and other people propagate his. It is perfectly fair … We do not want to restrict the sale of plants but increase it.’ Finally, the chairman concluded that ‘the point raised by Mr Paul is a most interesting one, but there are evidently two sides to it, as to most other things, and, unless there were a very decided majority in favour of it, I do not think it would be wise for us to move in the matter’.23

The problem in Britain, for those who wanted legislation, was that there was no consistent majority line around which breeders conformed, instead there were a plurality of views on subject. This disarray might be compared to the US situation, where Paul Stark lobbied very effectively for the PPA, with wide support from the American Seed Trade Association and the American Breeders’ Association and, of course, his congressman.24 As Margaret Llewellyn and Mike Adcock have noted about the genesis of UPOV rights, ‘the development of the right would not have occurred had it not been for the widespread commitment of the breeding community’.25 If at this early point in the century there was little consensus amongst plant breeders, what sort of shape was British plant breeding in? To cast more light on this question we can turn to the diary of George Shull, recorded as he toured British plant breeders in 1908.

George Shull’s Tour of British Plant Breeders

While visiting the 1908 Dublin meeting of the British Association for the Advancement of Science, George Shull included in his trip a tour of British plant breeders.26 His choices as to which plant breeders to visit and the work he found being carried out are both instructive. The picture we get of the British plant breeding community from Shull’s diary is of one populated largely by commercial breeders, many of them patriarchal family firms, few of whom seem to have been undertaking high levels of breeding, much less Mendelian breeding.27

Shull’s trip began on 8 August 1908. At the end of the month he visited the Thomas Rivers & Sons Nursery at Sawbridgeworth, near Cambridge. At the nursery he found a great deal of impressive production, achieved through the use of dwarfed fruit trees, ‘Many tons of apples and other fine fruits are sent to market every year and great quantities of nursery stock are sold.’ However, Shull found little evidence of breeding, and that, ‘[t]he breeding work has been necessarily simply a side issue and has been carried on largely for the sake of advertisement’.28 At Thomas Laxton’s nurseries the picture was pretty much the same, the sons of the great man had ‘continued the work, always as an adjunct to an ordinary nursery business’.29 The exception to this picture amongst the commercial breeders Shull visited was the Suttons’ nurseries. Here, the sons of Arthur Sutton, who like the old man, were close friends of William Bateson, were understandably keen on the new Mendelian breeding.30

When Shull finally got to visit an overworked Bateson, arguably the high point of his trip, it was at Grantchester, near Cambridge, at Bateson’s family home, where he was conducting all of his research. Mendelism, despite the high praise of the RHS, still did not have an institutional home in 1908; it was literally a cottage industry.31 During his trip Shull did not visit any public plant breeding stations; there would not be one in existence in Britain until 1912.32 In contrast, the commercial nurseries that he visited were flourishing, and we could add to this list Carters, Veitch and Gartons, all of which had recently moved into international markets including America and Australia.33 However, the amount of breeding that was actually conducted, at least on Shull’s sampling, is less than one would have expected. The great British seed houses and nurseries of the nineteenth century, with a few notable exceptions, were increasingly involved in seed dealing rather than plant breeding.34

The Great War and the New Mendelian System

In the same year as Shull’s tour, the fame of another sort of plant breeder was beginning to grow. This new class of academic plant breeders had their own hero: Rowland Biffen.35 While Shull was making his trip around Britain, Biffen was made chair of Agricultural Botany at the Cambridge University’s Agricultural Department. Although his chair was initially funded by the Worshipful Company of Drapers, Biffen’s research was increasingly funded by the Board of Agriculture and after 1910, another government body, created by then chancellor of the exchequer, David Lloyd George, with the aid of Winston Churchill, to aid rural reconstruction: the Development Commission.36 The Commission was initially charged with managing a £1million fund, although in subsequent years this money grew substantially. A.D. Hall, who was at one time a collaborator in research with Biffen, was appointed head of the Commission and his influence shaped its activities over the next seven years.37 Biffen was personal friends with many of the commission’s members and served, along with Bateson, on its sub-committees on several occasions.38

In 1910 Bateson came to be in control of his own research institute, the John Innes Horticultural Research Institute, although the institute did not receive significant public funding.39 At the same time, using the public funds that he increasingly commanded, as a Whitehall insider, Biffen established a Plant Breeding Institute at Cambridge University. Several students and many plant varieties circulated between Biffen and Bateson’s institutes.40 However, the institutional system that Biffen and his close friend Bateson, along with several other Cambridge- and Whitehall-based agricultural improvers were constructing, ostensibly remained inactive for the duration of the war.41 From 1916, Biffen worked at the Food Production Department: a body formed for the emergency nationalization of British agriculture. While at the unit Biffen further strengthened his connections to government at the same time as government was strengthening its control over British agriculture.

Britain was largely unprepared for the war and apparently came remarkably close to mass starvation. On the one hand British agriculture, after years of depression, was ill equipped to feed the population, on the other hand German U-boats were cutting off the majority of provisions from the merchant navy. Nationalization, forced ploughing and government-backed fixed wheat prices where all part of a package of measures introduced to increase average calorific intake. The figurehead of these measures, who by his own reckoning played no small part in winning the war, or least not losing it, was Thomas Middleton, former colleague at Cambridge, and now superior of the seconded Biffen at the Food Production Department.42 By the end of the war, with David Lloyd George as Prime Minister, Biffen, Bateson and many other Mendelians were every bit as connected to the legislature, through the Food Production Department, Board of Agriculture and Development Commission, as their American counterparts.

The Plans for Post-War Reconstruction

At the close of the Great War, A.D. Hall, who had left the Development Commission and was now near the top of the Board of Agriculture’s civil service apparatus, wrote to Bateson asking his advice on post-war reconstruction.43 Bateson’s reply was complex, but it reveals a great deal about Mendelian plans. Bateson was wary of any government funding for his own institute, feeling that the independence of agricultural research from practical aims should be safeguarded.44 However, he did see a role for government support. First, he suggested that Hall should organize for a ‘liaison officer’ to be employed by the Board of Agriculture as a go-between for Mendelians and the rest of the plant breeding community. Bateson, writing in 1917, felt the Mendelians, if they were to aid post-war agricultural reconstruction, needed someone to explain their work and encourage other breeders to make use of it themselves.45 Secondly, he felt that Mendelians needed a way to distribute their new varieties:

2. It is desirable that we should be in close association with an institution able to grow our things on a farm scale. Hitherto our efforts to get this done have been failures… It is unlikely that, except under strong pecuniary inducement, anyone will take the special care which such work demands, when he feels that the chief credit for success will go to someone else. In work of this kind we are in the hands of the grower, and a bad result can always be ascribed to an inherent peculiarity of the material. Perhaps the Cambridge Svalof (sic) Station will cover this want.46

Bateson was obviously sceptical about placing the job of multiplying new Mendelian varieties in the hands of the commercial seed trade. He felt that this was a job for government, especially a government which was now emboldened in its desire to intervene in agriculture as a result of its experiences during the war. The Cambridge Svalöf station which Bateson referred to was Rowland Biffen’s Plant Breeding Institute, which Biffen was hoping to expand through a new plan for government-backed and partly nationalized seed distribution.