1 00:00:00,280 --> 00:00:11,039 Speaker 1: This Day in History Class is a production of iHeartRadio. 2 00:00:11,280 --> 00:00:15,400 Speaker 2: Hello and welcome to This Day in History Class, a 3 00:00:15,520 --> 00:00:18,960 Speaker 2: show that knows the seeds of the future lie buried 4 00:00:19,000 --> 00:00:23,360 Speaker 2: in the past. I'm Gay Lucier and in this episode 5 00:00:23,520 --> 00:00:27,400 Speaker 2: we're talking about an unusual chapter in the history of patents, 6 00:00:27,760 --> 00:00:31,960 Speaker 2: the hard won battle to extend protections to living plants 7 00:00:32,159 --> 00:00:41,920 Speaker 2: and trees. The day was February sixteenth, nineteen thirty two. 8 00:00:42,920 --> 00:00:47,640 Speaker 2: Illinois farmer James Markham received the first fruit tree patent 9 00:00:47,920 --> 00:00:51,839 Speaker 2: for a hybrid peach tree. He had spent five years 10 00:00:51,960 --> 00:00:56,000 Speaker 2: crossbreeding different varieties of peaches in the hope of producing 11 00:00:56,000 --> 00:01:00,160 Speaker 2: a fruit that would ripen later and contain much smaller seeds. 12 00:01:00,720 --> 00:01:03,640 Speaker 2: He nearly gave up on the project several times along 13 00:01:03,680 --> 00:01:06,319 Speaker 2: the way, and at one point he even tried to 14 00:01:06,360 --> 00:01:10,520 Speaker 2: sell off his farm in Fairfield. Luckily for Markham, no 15 00:01:10,600 --> 00:01:12,760 Speaker 2: one wanted to buy it, and he was left with 16 00:01:12,840 --> 00:01:16,480 Speaker 2: no choice but to carry on with his experiments. Then, 17 00:01:16,880 --> 00:01:20,039 Speaker 2: one day, in the late summer of nineteen thirty he 18 00:01:20,160 --> 00:01:22,840 Speaker 2: noticed that the peaches on one of his hybrid trees 19 00:01:23,080 --> 00:01:26,440 Speaker 2: had turned a vivid red. When he sliced into them, 20 00:01:26,600 --> 00:01:29,520 Speaker 2: he was delighted to find that even though the fruits 21 00:01:29,560 --> 00:01:33,119 Speaker 2: were the size of normal peaches, their pits were roughly 22 00:01:33,160 --> 00:01:36,920 Speaker 2: the size of those found in plums. By crossing the 23 00:01:36,959 --> 00:01:41,080 Speaker 2: flavorful J. H. Hale peach with an unknown yellow variety, 24 00:01:41,520 --> 00:01:45,680 Speaker 2: James Markham had created a new distinct fruit, one that 25 00:01:45,760 --> 00:01:49,200 Speaker 2: couldn't be found in the wild and was therefore eligible 26 00:01:49,360 --> 00:01:55,960 Speaker 2: for patent protection. American palmologists, or those who cultivate fruit trees, 27 00:01:56,280 --> 00:01:59,800 Speaker 2: have long relied on the concept of intellectual property to 28 00:01:59,880 --> 00:02:04,280 Speaker 2: go guard their new fruit varieties against piracy. The concern 29 00:02:04,440 --> 00:02:07,440 Speaker 2: came to the fore in the mid nineteenth century, when 30 00:02:07,440 --> 00:02:11,079 Speaker 2: improved varieties of fruits in the United States were bought 31 00:02:11,120 --> 00:02:15,040 Speaker 2: and sold under a plethora of different names. For example, 32 00:02:15,400 --> 00:02:19,160 Speaker 2: one popular apple, the Ben Davis, was also known in 33 00:02:19,240 --> 00:02:23,440 Speaker 2: certain regions as the Victoria Red, the Carolina Red, the 34 00:02:23,520 --> 00:02:27,560 Speaker 2: Carolina Red Streak, the Kentucky Streak, the New York Pippin, 35 00:02:27,840 --> 00:02:31,880 Speaker 2: and the Red Pippin. Aside from being just plain confusing, 36 00:02:32,200 --> 00:02:36,280 Speaker 2: the over abundance of names lent itself to piracy and fraud. 37 00:02:36,880 --> 00:02:41,040 Speaker 2: Fruit breeders put considerable time, money, and effort into creating 38 00:02:41,160 --> 00:02:44,600 Speaker 2: new improved varieties that could later be sold at market, 39 00:02:45,040 --> 00:02:48,320 Speaker 2: but because there were no patent protections for plants. At 40 00:02:48,320 --> 00:02:51,400 Speaker 2: that time, it was all too easy for a competitor 41 00:02:51,520 --> 00:02:55,000 Speaker 2: to take a cutting from a valuable tree, propagate their own, 42 00:02:55,280 --> 00:02:58,400 Speaker 2: and then sell them under a different name. The best 43 00:02:58,480 --> 00:03:01,560 Speaker 2: means of combating this thing theft in the eighteen hundreds 44 00:03:01,840 --> 00:03:06,800 Speaker 2: was to illustrate and catalog each distinct variety, including its provenance, 45 00:03:07,000 --> 00:03:10,440 Speaker 2: key features, and most importantly, all the names it was 46 00:03:10,480 --> 00:03:15,320 Speaker 2: sold under. The American Pomological Society was founded for that 47 00:03:15,440 --> 00:03:18,519 Speaker 2: exact purpose, and in the latter half of the nineteenth 48 00:03:18,560 --> 00:03:22,840 Speaker 2: century it compiled and published hundreds of color illustrations of 49 00:03:22,880 --> 00:03:27,440 Speaker 2: different fruits, allowing them to be reliably identified by growers 50 00:03:27,560 --> 00:03:31,760 Speaker 2: and sellers alike. In addition to its practical value, the 51 00:03:31,800 --> 00:03:36,120 Speaker 2: botanical artwork was often visually striking, especially the work of 52 00:03:36,200 --> 00:03:40,520 Speaker 2: Society member Charles M. Hovey. But no matter how detailed 53 00:03:40,680 --> 00:03:44,720 Speaker 2: or beautiful the illustrations looked, they couldn't actually protect the 54 00:03:44,840 --> 00:03:49,280 Speaker 2: farmer's intellectual property. Plenty of nursery men found that out 55 00:03:49,320 --> 00:03:54,920 Speaker 2: the hard way, including famed California botanist and horticulturist Luther Burbank. 56 00:03:55,480 --> 00:03:59,720 Speaker 2: He dedicated his life to agricultural science and developed hundreds 57 00:03:59,720 --> 00:04:04,119 Speaker 2: of us unique new varieties of fruits, flowers, grains, grasses, 58 00:04:04,160 --> 00:04:07,240 Speaker 2: and vegetables. But with no way to patent his work, 59 00:04:07,520 --> 00:04:11,960 Speaker 2: Burbank often fell prey to plant related piracy. I have 60 00:04:12,000 --> 00:04:15,240 Speaker 2: been robbed and swindled out of my best work, he 61 00:04:15,360 --> 00:04:19,600 Speaker 2: once wrote, by name thieves, plant thieves, and in various 62 00:04:19,680 --> 00:04:23,440 Speaker 2: ways too well known to the originator, A plant which 63 00:04:23,480 --> 00:04:27,520 Speaker 2: costs thousands of dollars in coin, in years of intensest 64 00:04:27,600 --> 00:04:31,360 Speaker 2: labor and care, which is of priceless value to humanity, 65 00:04:31,720 --> 00:04:36,440 Speaker 2: may now be stolen with perfect impunity by any sneaking rascal. 66 00:04:37,640 --> 00:04:41,200 Speaker 2: The rampant theft of plant innovations led many in the 67 00:04:41,200 --> 00:04:44,520 Speaker 2: industry to lobby the government for help, either through the 68 00:04:44,520 --> 00:04:48,080 Speaker 2: creation of a national register of plants or through the 69 00:04:48,120 --> 00:04:53,760 Speaker 2: extension of patent protections. Those calls when unheeded for several decades, 70 00:04:53,960 --> 00:04:57,719 Speaker 2: but in nineteen thirty their persistence finally paid off when 71 00:04:57,800 --> 00:05:01,640 Speaker 2: Congress passed the Plant Patent Act AC. The Act was 72 00:05:01,680 --> 00:05:05,279 Speaker 2: the first law in the world to extend patent coverage 73 00:05:05,400 --> 00:05:10,440 Speaker 2: to living organisms, namely to new varieties of fruit, trees, vines, 74 00:05:10,520 --> 00:05:15,960 Speaker 2: and flowers. Interestingly, tuber plants such as potatoes were excluded 75 00:05:16,000 --> 00:05:19,560 Speaker 2: by the Act, most likely because the idea of patenting 76 00:05:19,600 --> 00:05:24,160 Speaker 2: a staple food made some people nervous. The Act authorized 77 00:05:24,200 --> 00:05:27,919 Speaker 2: patents to be granted to anyone who had quote invented 78 00:05:28,080 --> 00:05:32,520 Speaker 2: or discovered and a sexually reproduced any distinct and new 79 00:05:32,600 --> 00:05:36,360 Speaker 2: variety of plant. In other words, the scope of the 80 00:05:36,400 --> 00:05:39,760 Speaker 2: Act was limited only to plant varieties that had been 81 00:05:39,839 --> 00:05:43,440 Speaker 2: intentionally cultivated. So you wouldn't be able to patent a 82 00:05:43,480 --> 00:05:46,520 Speaker 2: new variety that you stumbled across in the wild, but 83 00:05:46,640 --> 00:05:49,640 Speaker 2: you would be able to if you purposely invented a 84 00:05:49,720 --> 00:05:53,479 Speaker 2: new plant through methods such as cross pollination or grafting, 85 00:05:54,000 --> 00:05:58,320 Speaker 2: or if you accidentally discovered one in a cultivated area, 86 00:05:58,839 --> 00:06:02,840 Speaker 2: even if that area belonged to someone else. Once a 87 00:06:02,880 --> 00:06:06,279 Speaker 2: certain plant was patented, it was illegal for others to 88 00:06:06,400 --> 00:06:10,279 Speaker 2: clone or asexually propagate it for the next twenty years 89 00:06:10,600 --> 00:06:13,400 Speaker 2: unless they paid a licensing fee to the patent holder. 90 00:06:14,120 --> 00:06:17,840 Speaker 2: This ensured that the originator's investment would be protected and 91 00:06:17,920 --> 00:06:21,640 Speaker 2: rewarded for a reasonable length of time before the fruits 92 00:06:21,640 --> 00:06:25,839 Speaker 2: of their labor became open to everyone. The very first 93 00:06:26,040 --> 00:06:30,240 Speaker 2: plant patent was issued to Henry Bosenberg in nineteen thirty 94 00:06:30,279 --> 00:06:34,360 Speaker 2: one for his climbing ever blooming rose, but the first 95 00:06:34,400 --> 00:06:38,359 Speaker 2: patent for a fruit tree plant Patent number seven, was 96 00:06:38,400 --> 00:06:42,840 Speaker 2: issued to James Markham on February sixteenth, nineteen thirty two. 97 00:06:43,640 --> 00:06:47,360 Speaker 2: The Markham peach tree was said to produce uniformly large 98 00:06:47,400 --> 00:06:51,839 Speaker 2: peaches with relatively small seeds, the result of five years 99 00:06:51,920 --> 00:06:56,840 Speaker 2: worth of serum treatment, cross pollination, and grafting. Markham had 100 00:06:56,839 --> 00:07:00,640 Speaker 2: applied for his patent way back in September of nineteen thirty, 101 00:07:01,080 --> 00:07:04,240 Speaker 2: just three months after the passage of the Plant Patent Act. 102 00:07:04,640 --> 00:07:07,520 Speaker 2: He knew that plant piracy was still a threat until 103 00:07:07,560 --> 00:07:10,239 Speaker 2: he had the patent in hand, so he shrewdly built 104 00:07:10,280 --> 00:07:13,720 Speaker 2: a steel cage around the tree while he waited. Once 105 00:07:13,760 --> 00:07:17,040 Speaker 2: the patent finally arrived, Markham sent a sample of his 106 00:07:17,120 --> 00:07:21,600 Speaker 2: peaches to Stark Brothers Nurseries and Orchards in Louisiana, Missouri. 107 00:07:22,360 --> 00:07:26,360 Speaker 2: Apparently they liked what they saw, because a nursery executive 108 00:07:26,480 --> 00:07:29,480 Speaker 2: came to his farm the very next day and bought 109 00:07:29,480 --> 00:07:32,480 Speaker 2: the rights to the tree for twenty five hundred dollars. 110 00:07:33,440 --> 00:07:36,560 Speaker 2: In this way, the Plant Patent Act of nineteen thirty 111 00:07:36,720 --> 00:07:40,720 Speaker 2: secured a bright and profitable future for America's plant breeders, 112 00:07:41,120 --> 00:07:43,840 Speaker 2: but it also provided a way to pay homage to 113 00:07:43,920 --> 00:07:48,800 Speaker 2: the past. Several plant patents were issued posthumously to Luther Burbank, 114 00:07:49,160 --> 00:07:52,800 Speaker 2: and just like for standard patents, applicants for plant patents 115 00:07:52,880 --> 00:07:57,040 Speaker 2: are required to submit drawings of their products. That means 116 00:07:57,080 --> 00:08:01,200 Speaker 2: that illustrations of fruits are at Las long last, a 117 00:08:01,240 --> 00:08:07,720 Speaker 2: way to protect the real thing. I'm Gabe Lucier and 118 00:08:07,840 --> 00:08:11,480 Speaker 2: hopefully you now know a little more about history today 119 00:08:11,720 --> 00:08:15,720 Speaker 2: than you did yesterday. If you enjoyed today's episode, consider 120 00:08:15,800 --> 00:08:19,360 Speaker 2: keeping up with us on Twitter, Facebook, and Instagram. You 121 00:08:19,400 --> 00:08:23,840 Speaker 2: can find us at hedi HC Show. You can also 122 00:08:24,040 --> 00:08:27,160 Speaker 2: rate and review the show on Apple Podcasts, or you 123 00:08:27,200 --> 00:08:30,120 Speaker 2: can get in touch directly by writing to This Day 124 00:08:30,400 --> 00:08:34,800 Speaker 2: at iHeartMedia dot com. Thanks to Chandler Mays for producing 125 00:08:34,840 --> 00:08:37,480 Speaker 2: the show, and thanks to you for listening. I'll see 126 00:08:37,520 --> 00:08:41,240 Speaker 2: you back here again soon for another day in History class.