136
Opinion of the Court
Thus, it is hardly surprising that plant patents would protect only asexual reproduction, since this was the most reliable type of reproduction for preserving the desirable characteristics of breeding. See generally E. Sinnott, Botany Principles and Problems 266-267 (1935); J. Priestley & L. Scott, Introduction to Botany 530 (1938).
Furthermore, like other laws protecting intellectual property, the plant patent provision must be understood in its proper context. Until 1924, farmers received seed from the Government's extensive free seed program that distributed millions of packages of seed annually. See Fowler, The Plant Patent Act of 1930: A Sociological History of its Creation, 82 J. Pat. & Tm. Off. Soc. 621, 623, 632 (2000).8 In
1930, seed companies were not primarily concerned with varietal protection, but were still trying to successfully com-modify seeds. There was no need to protect seed breeding because there were few markets for seeds. See Kloppenburg 71 ("Seed companies' first priority was simply to establish a market, and they continued to view the congressional distribution as a principal constraint").
By contrast, nurseries at the time had successfully commercialized asexually reproduced fruit trees and flowers. These plants were regularly copied, draining profits from those who discovered or bred new varieties. Nurseries
reproduction. It does not include the right to propagate by seeds. This limitation in the right granted recognizes a practical situation and greatly narrows the scope of the bill"). The limitation to asexual reproduction was a recognition of the "practical situation" that seedlings did not reproduce true-to-type. An exclusive right to asexual reproduction was the only type of coverage needed and thought possible given the state of plant breeding at the time.
8 At its high point in 1897, over 20 million packages of seed were distributed to farmers. See N. Klose, America's Crop Heritage 98 (1950). Even at the time the program was eliminated in 1924, it was the third largest line item in the Department of Agriculture's budget. See J. Kloppenburg, First the Seed: The Political Economy of Plant Biotechnology 1492-2000, p. 71 (1988) (hereinafter Kloppenburg).
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