This section is from the book "The Gardener's Monthly And Horticulturist V21", by Thomas Meehan. See also: Four-Season Harvest: Organic Vegetables from Your Home Garden All Year Long.
This measure is alleged to be impracticable by its opposers, but the objection is not well founded. If the varieties could be identified the rights of the producers could be protected. That they could be identified is evident from the fact that exotic sorts are identified. The selling of old sorts under new names has been frequently practiced, but such frauds are invariably detected, sooner or later, although the perpetrators escape punishment. But if they attempted to swindle in this way with protected sorts they would soon be prosecuted by the introducers, and the adoption of synonyms would thus be I prevented. They would not dare to sell them under their real names, or claim them to be protected under new ones, because so doing would render them liable to immediate detec-tion and the infliction of a severe penalty, as any person might be an emissary of the owner of the protective right. The taking of orders for plants of new sorts by the agents of dishonest nurserymen and dealers, and supplying others in their stead under the names of those ordered has been practiced to such an extent as to make the terms tree agent and swindler almost synonymous.
The protection against this kind of fraud, which the proposed enactment would afford the public, furnishes an argument of great weight in its behalf. Although Mr. Eugene Glen, of Rochester, N. Y., has preceded me in making this argument, in a future communication I propose to show that it is capable of application also against his scheme to protect by act of copyright alone.
Endless litigation is another objection. It would be optional with introducers to litigate. To prevent infringement by the trade would be the principal requirement, which there is good reason to believe could be enforced. Desultory infringement among the people would not ma-terally affect them. The enactment undoubtedly would be considered a great innovation, but when it became apparent, by means of litigation, that originators had rights of property in their productions which must be respected, and that the public was protected in the purchase of those productions, such litigation would show itself to be far otherwise than an unmitigated evil.
The objection has been made that if an individual bought plants of a new variety he would have a right to make such disposition of them as he chose. The objectors overlook the fact that under the law proposed the right to use the variety for a certain purpose would not be bought. A manufacturer may own all the material and appliances for making a patented device, but the law forbids him to do so, even for his own use. The owner of a printing press is forbidden to publish the simplest pamphlet protected by copyright. All wooded plants once set out to produce fruit or for ornament soon become unsaleable apart from the land, or too large for removal, therefore the exclusive right of the introducer to disseminate to be grown would not interfere with the inclinations of the mass of purchasers. It is commonly asserted that the best way to remunerate originators of valuable productions is to pay them sufficient amounts from the public treasury. But the value of new varieties for general cultivation could be determined by no committee, however competent, before public trial and dissemination of them; hence the producer of a new apple or pear would have to wait fifteen to twenty years, or more, before its value could be thus ascertained and he be recompensed therefor.
Then is it to be supposed the government would pay anything for the origination of a new flowering or ornamental plant? If a patent or protective letters were conferred for anew sort the producer would have an opportunity to obtain compensation immediately by the sale of his exclusive right, or within a comparatively brief period by propagating a stock of plants for sale.
[At Mr. Moore's urgent request we have decided to insert this communication, chiefly to show that those who are pressing this matter have not advanced beyond the old difficulty. We have asked those who contend that an intelligent board at Washington could define a "new" fruit, to give us a specimen of their own definition. If Mr. Moore will please place in language a "definition" of what is to constitute the "novelty entitling to protection " in the Ams-den, the Honeywell, the Alexander or some early peaches, as an illustration, we might proceed with the further discussion of the subject. We have asked for this preliminary, but it does not come. It is a waste of time and space to talk of protecting a definition if the article be undefinable. - Ed. G. M].