This section is from the book "The Gardener's Monthly And Horticulturist V20", by Thomas Meehan. See also: Four-Season Harvest: Organic Vegetables from Your Home Garden All Year Long.
As all understand, a patent gives to an inventor and his assigns the exclusive right of making:, using and selling the patented article for a term of years specified in the letters patent. If corresponding rights and privileges were extended to an originator of a new variety in horticulture, they would secure to him and his representatives the exclusive right of propagating, selling and planting for fruitage or flowering trees or plants of his variety for the time fixed by law, regardless of the name under which such variety might be propagated, sold or planted. Hence, though a man might buy a tree in entire ignorance of the fact that it was of a patented variety, if upon its fruiting it proved to be such, he would have to pay the patentee his own price for a waiver of his right, or lose the tree, and be subject to all the pains and penalties or the patent law. This feature of the law, taken in connection with the | fact that as to most varieties it is quite impossible for even the most experienced nurseryman to distinguish them with certainty in advance of fruitage, would undoubtedly create such distrust and anxiety upon the part of would-be planters as to largely decrease rather than stimulate planting. Herein, to my view, lies the one great objection to horticultural patents.
They would defeat the very ends sought to be secured by them, for with such chances of trouble, the masses would entirely abstain from buying horticultural goods; and if they did, originators of new articles would derive no income therefrom. The nursery trade would be paralyzed, and before two years had expired there would be a loud and universal cry for the repeal of the law. If it could be shown that a similar objection would lie against the proposed copyrights I should think it fatal to them; but such a result cannot be predicted of the latter, for while a patent follows the article to which it is applied, and reduces both seller and user equally punishable, a copyright acts only on the publisher or seller. Hence any one desiring a copyrighted article may safely buy it, wherever it is offered, without enquiring into the right of the seller to deal in it; and therefore, inasmuch as buyers could not be prosecuted under the proposed law, it could not create apprehensions or engender fears of litigation upon the part of planters; hence it could not act as a hindrance to planting.
But its effect in this respect would not be merely negative.
We have seen that it would lessen the sale of fraudulently labelled goods by deterring evil disposed persons from attaching copyrighted names to trees, plants and seeds of inferior varieties, but this is not all it would do. Copyrights upon the names of good sorts would become valuable, and it would place the control of these names in the hands of the originators of the respective varieties. They would have the ability, and the preservation of their property, and the copyrights would give them every incentive to see that all who were allowed to use these names respectively were supplied with genuine stack from which to propogate. Hence a copyrighted name attached to a tree or plant would become in a great degree a symbol of its genuineness. This would weaken the prejudices of those who now abstain from planting through fear of getting spurious trees; and as the possibility of obtaining a valuable copyright would stimulate experiments in artificial hybridizing, and thus improve the varieties of fruit and flowers open to cultivation, it cannot be doubted that the proposed law would naturally add to the interest taken in these branches of industry.
The objection has been suggested that under the operation of the proposed law much embarrassing litigation would result from the difficulty in distinguishing between different varieties at the time of sale, and this would be eminently true of horticultural patent law; but as the only possible contingency in which this question could arise under the copyright law, would be when a nurseryman or dealer claiming that a copyrighted name had been fraudulently applied to an old sort, persisted in selling such sort under the new or copyrighted name rather than the old or free name. This objection can never become formidable. All copyrights would be presumptively valid, and nurserymen would not make use of such names without authority, unless the evidence that they were a fraud upon the law was clear. If otherwise, theirs would not be cases for sympathy.
In discussing this subject in your columns, I have paid less attention to showing the importance of adopting some measure as a means of encouraging hybridizations, and thus securing new and improved varieties, than I otherwise would, for the reason that it has seemed to me certain that all must recognize the fact that there is now really no encouragement to this work, and without it we cannot hope to have such varieties. A single illustration of this point will suffice. Mr. James A. Ricketts, of Newburgh, N. Y., as the result of thousands of experiments, has produced quite a large number of varieties of grapes, which are said to promise better than any sorts now before the public; but the fact that he cannot transfer to purchasers of the stock of the respective varieties even the most limited protection in the sale of vines thereof, has not only prevented him from realizing an adequate return for his outlay of money, time and skill, but it has, thus far, deprived the public of the benefit of varieties which may prove much superior to any now open to its choice. To extricate both parties from this dilemma, the dangerous precedent of asking Congress to buy the stock of these varieties and disseminate them through the Agricultural Department, has been proposed.
The inevitable result of doing this would be, that thereafter Congress would be asked to buy the stock of every seedling which even the originator thereof might think valuable; and before-the Agricultural Department could propagate Mr. Ricketts' sorts to an extent that would enable it to supply a tithe of those desiring them, the country would be flooded with spurious vines through the scoundrels in the trade to whom I have adverted.
A single question of interest to the general public remains to be considered. Will the proposed law give additional currency to inferior or worthless varieties ? Feeling confident not only that it will not do this, but that it will render the introduction and sale of such sorts much more difficult than it now is, I will make this feature the subject of another and closing communication.