150
Breyer, J., dissenting
As initially enacted in 1930, the PPA began by amending the Utility Patent Statute to read as follows:
"Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, or who has invented or discovered and asexually reproduced any distinct and new variety of plant, other than a tuber-propagated plant . . . may . . . obtain a patent therefor[e]." Rev. Stat. § 4886, as amended by Act of May 23, 1930, § 1, 46 Stat. 376 (language added by the PPA italicized).
This language refers to all plants. It says that an inventor—in principle—can obtain a patent on any plant (the subject matter of the patent) that meets three requirements. It must be distinct; it must be new; and on one or more occasions it must have been "asexually reproduced," e. g., reproduced by means of a graft.
This last-mentioned "graft" requirement does not separate (1) those plants that can reproduce through grafting from (2) those plants that can reproduce by seed. The two categories are not mutually exclusive. P. Raven, R. Evert, & S. Eichhorn, Biology of Plants 179-180, 255 (6th ed. 1999). Many plants—perhaps virtually any plant—can be reproduced "asexually" as well as by seed. S. Rep. No. 315, 71st Cong., 2d Sess., 5 (1930). Rather, the "asexual reproduction" requirement sought to ensure that the inventor was capable of reproducing the new variety "asexually" (through a graft) because that fact would guarantee that the variety's new characteristics had genetic (rather than, say, environmental) causes and would prove genetically stable over time. See ibid. ("A plant patent covers only the exclusive right of asexual reproduction, and obviously it would be futile to grant a patent for a new and distinct variety unless the variety had been demonstrated to be susceptible to asexual reproduction"); cf. Dunn v. Ragin, 50 USPQ 472, 474 (1941)
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